The tangled web that a narrow Supreme Court majority wove to shut down
the Florida recount of presidential ballots in December 2000 made it
possible for Republican George W.
A few hours after Miguel Estrada withdrew his name for a judgeship on
the Court of Appeals for the Washington, DC, Circuit, a leading Senate
liberal was asked about the meaning of the two-year
The attacks of September 11, 2001, ushered in a multitude of legal
transformations that restrict civil liberties in the name of national
With the Bush Administration continuing to fill the federal courts with
right-wing judges, liberals have turned with renewed vigor to a strategy
that not only allows them to defeat individual n
Few of George W. Bush's judicial nominees have generated as much
opposition as has Miguel Estrada.
"Ask for a lawyer immediately upon your arrest," reads the little
informational card the ACLU hands out to citizens.
Democrats, faced with Scalia and Thomas clones, are finally saying: Ideology matters.
In the 39 states that elect appellate judges, politicization of the
bench is growing.
Packing the judiciary with right-wingers like Priscilla Owen.
When the New York City Board of Education called on public schools to
bring back the Pledge of Allegiance in the wake of 9/11, my daughter, a
freshman at Stuyvesant High, thought her big chance to protest had
finally come. Have you thought about what you'll say if you have to
justify not reciting it? I asked. "Sure," she replied. "I'll say,
there's such a thing as the First Amendment, you know--separation of
church and state? I mean, under God? Duh!" Judge Alfred Goodwin
of the Court of Appeals for the Ninth Circuit, meet my Sophie, future
president of the ACLU if the punk-rock-guitarist plan doesn't work out.
Virtually every politician in the country has issued a press release
deploring Judge Goodwin's ruling that the words "under God" constituted
a coercive endorsement of religion. "Ridiculous!" said the President.
Tom Daschle led the Senate in a stampede to condemn the ruling 99 to 0,
after they recited the pledge together. The Times editorial
expressed the standard liberal line, mingling world-weariness and fear:
"under God" is a trivial matter, so why arouse the wrath of the mad
Christians? You can turn that argument around though--if it's so
trivial, why not do the right, constitutional thing? Let the
nonbelieving babies have their First Amendment bottle! The very fact
that the vast majority of Americans believe in God counts against
inserting expressions of religious faith into civic exercises for
kids--civil liberties are all about protecting unpopular minorities from
being steamrollered by the majority. The history of "under God" is not
very edifying or even very long: It was added to the original
pledge--written in 1892 by Francis Bellamy, a socialist--by Congress in
1954 as a means "to deny the atheistic and materialistic concept of
communism." If that was the purpose, it worked. The new Evil Ones,
however, have no quarrel with being "under God"; it's the "liberty and
justice for all" they disapprove of. If we really want to drive them
nuts, we should change "under God" to "with equality between men and
women." Or better yet, retire the pledge as an exercise in groupthink
unbefitting a free people.
Something tells me we haven't seen the last classroom invocation of the
divine umbrella--Judge Goodwin has already stayed his own ruling--but
even if the decision is upheld, it's unfortunately the least significant
in a number of recent rulings about education. The Supreme Court
decision upholding the Cleveland school voucher program is a real,
nonsymbolic triumph for organized religion, which stands to reap
millions of dollars in public funds, taken directly from the budgets of
the weakest school systems. Theoretically, your tax dollars can now
support the indoctrination of every crackpot religious idea from
creationism to stoning, with extra credit for attending rallies against
legal abortion and for the retention of "Judea" and "Samaria" as God's
gift to the Jewish people. What happened to e pluribus unum?
(Interestingly, as David Greenberg notes in Slate, e pluribus
unum was replaced as the national motto in 1956 by... In God We
Trust!) And what about that pesky First Amendment? Writing for the 5-4
majority, Chief Justice Rehnquist argues that separation of church and
state is preserved because it is the parent, not the state, who actually
turns the voucher over to the religious school. By the same logic, why
not a health system in which patients get vouchers good for surgery or a
ticket to Lourdes?
The same day brought the Court's decision upholding random drug testing
of students who want to take part in after-school activities. Now
there's a great idea--take the kids who could really use something
productive to do with their afternoons, kids who, whatever mischief
they're up to, actually want to run track or sing in the chorus or work
on the yearbook, and don't let them do it! God forbid some 16-year-old
pothead should get a part in the drama club production of Arsenic and
Old Lace. The harm of the ruling isn't just that kids who do drugs
will now have yet more time on their hands and yet more reason to bond
with their fellow slackers, it's that everyone gets a lesson in
collective humiliation and authoritarianism--stoned or straight, the
principal can make you pee in a cup. Consider too that one-third of
schools now offer abstinence-only sex education, in which kids are told
that contraception doesn't work and having sex before marriage is likely
to be fatal--if the kids don't go to parochial school, apparently,
parochial school comes to them.
The prize for the worst school-related decision, though, has to go to
the panel of New York State appeals court judges that reversed Justice
Leland DeGrasse's brave and noble ruling invalidating the state's school
funding formula, which gives less money per child to New York City
schools despite the fact that city schools have disproportionate numbers
of poor and non-English-speaking children. According to Justice Alfred
Lerner, author of the court's majority opinion, the state is required to
provide its young only the equivalent of a middle-school
education--enough for them to sit on a jury, vote and hold down a menial
job. Anything more is optional and can be distributed at will. (Why not
let kids drop out after eighth grade, you may ask? Well, then they'd
miss abstinence classes and drug tests and reciting the Pledge of
Allegiance!) The world needs workers at the lowest levels, the judge
observes, so let the black and Hispanic kids of New York City be the
hewers of wood and drawers of water and flippers of burgers. Somebody's
got to do it--and it's a safe bet it won't be the judges' children.
Maybe the critical legal theorists are right and the law is merely a
form of words into which can be poured whatever meaning the ruling class
wants it to have. It's hard to understand in any other way the court's
willful misunderstandings of the actual conditions of city public
schools, so that they could respond to plaintiff's evidence of schools
with decades-old outmoded science textbooks by harrumphing that there's
nothing wrong with libraries full of "classics."