[Dialogue] Spong on the Supreme Court, and right to die
KroegerD@aol.com
KroegerD at aol.com
Wed Jan 18 20:12:19 EST 2006
January 18, 2006
The Constant Quest for An Independent Judiciary
The Senate of the United States has recently engaged in a protracted process
before voting on the President’s nomination of one to sit on the nation’s
highest court. It was a highly politicized, televised spectacle designed to
influence public opinion for or against Appeals Court Judge Samuel Alito.
Lobbying groups joined the battle, spending millions of dollars. The acrimonious
debate reflected the deep divisions present in American society today. There
was once a time in our history when the Supreme Court was viewed as a
non-partisan body that stood majestically above the political fray, adjudicating the
law with a dispassionate commitment to the exercise of justice. That time,
however, is both long gone and all but forgotten.
Few citizens are aware that between the establishment of the Supreme Court in
1789 and the end of the Civil War in 1865, the Supreme Court declared only
two acts of Congress to be unconstitutional. During the next sixty years that
number rose but only to six. The election of Franklin D. Roosevelt marked the
time when politicizing the Court began in earnest
In his first term (1933-1937) FDR did not get a chance to nominate a single
justice to this Court. Of the nine sitting members at that time, Taft had
appointed one, Wilson two, Harding two, Coolidge one and Hoover three. Seven of
the nine Justices were thus Republican appointees. It is interesting to note,
however, that one of Wilson’s appointees, Justice J. C. McReynolds, was
considered an ultra-conservative while Justice Benjamin Cardoza, appointed by
Herbert Hoover, and Justice Harlan Stone, appointed by Calvin Coolidge, were
consistently in the liberal camp, demonstrating that predictions of how justices
will vote is an inexact science.
The depression was in full swing when Roosevelt took office requiring, he
felt, some dramatic political action. So a series of emergency bills were passed
including the National Industrial Recovery Act, the Agricultural Adjustment
Act, the National Labor Relations Act, the Tennessee Valley Authority and the
Social Security Act. One by one these Roosevelt initiatives were deemed by
the Supreme Court to violate the Constitution by invading the powers reserved
to the States. The vote on these measures was typically 5 to 4. As these acts
fell before the Court and with a ruling on Social Security pending, the
President was irate.
The five justices who constituted the majority on these decisions included
four traditional hard line conservatives: Justices J. C. McReynolds, George
Sutherland, Willis Van Devanter and Pierce Butler. The liberal minority pitted
against them was a block of three staunch liberals: Justices Benjamin Cordoza,
Harlan Stone and Louis Brandeis. The other two members of this Court,
Justice Owen Roberts and Chief Justice Charles Evans Hughes, were considered
unpredictable swing votes. However, in each of the crucial tests of New Deal
Legislation, Justice Roberts sided with the conservatives and Chief Justice Hughes
with the liberals. When the New Deal legislation began to fall, Roosevelt
condemned the entire body, labeling them “a group of nine old men.” After his
sweeping electoral victory in 1936, in which he carried 46 of the 48 states
and won by 10,000,000 votes, FDR made what was probably the biggest mistake in
his entire presidency. Misreading his mandate, he had his attorney general
prepare the piece of legislation that came to be called “The Court Packing Bill.
” This legislation, if passed, would have allowed the president to appoint
an additional justice for every justice over 70 years of age. At that time
this would have led to six new appointees. An enormous battle ensued. That bill,
if enacted, had the potential to disturb forever the balance of power
between the three branches of our government. Like all politicians, members of the
Roosevelt administration tried to cover their plan with palatable and
misleading rhetoric. This was not an attempt to impose its will on the courts, the
administration argued; it was simply to relieve the overburdened workload of
the justices. When Chief Justice Hughes wrote a letter to Montana’s Democratic
Senator Burton Wheeler to be read on the floor of the Senate, in which he
stated that neither the Court nor the Justices were overworked or behind in
their duties, the facade was blown and the liberal attack on the Court was
recognized for what it was.
The tension of that confrontation had its effects anyway, as Justice Owen
Roberts, apparently reading the signs of the times, had a conversion and
suddenly shifted to the liberal side. Social Security was declared constitutional
and shortly thereafter, Justice Van Devanter resigned and Roosevelt appointed
the first of his eight presidential nominees. In time he actually did pack
the Court, but he did it legally and as called for under the Constitution.
Liberals need to appreciate that the partisan atmosphere that surrounds the Court
today is the inevitable result of an earlier attempt to politicize the Court
begun primarily by New Deal liberals.
Since that time, the President and the Senate have had battles royal over
appointees. Some nominees were thought to be too far out of the mainstream, as
in the case of Robert Bork. Some were considered unqualified as in the cases
of Harold Carswell and Harriet Miers; some were said to lack sufficient
character, as was the case with Clarence Thomas. Political debts have been paid off
with some appointees. Lines have been drawn in the sand with others.
Beginning in 1954 with the Brown vs. the Board of Education decision
outlawing school segregation, the primary attacks on the Court have come from
conservatives. The code words used in these attacks have been “legislating from the
bench” or not being “strict constructionists.” These phrases were and are
little more than the conservative versions of Roosevelt’s dishonest rhetoric,
designed to cover the hidden presence of overt racism. Basic human freedoms
ought never to be the subject of a legislative vote. That is exactly the
responsibility assigned to the courts under the provisions of our Constitution.
Protecting the rights of minorities is what keeps a democracy from becoming
subject to the tyranny of the mob. Majority rule, which lies at the heart of the
democratic experiment, can never be used to violate the rights of minorities.
Still the howls of protest arose, primarily from the affected South, as the
Court moved deeper into civil rights by supporting people’s right to public
accommodations and finally to the ballot box.
Later, when the Court moved to protect the rights of religious minorities
from having the will of the religious majority imposed on them in public school
settings, religious conservatives raised the battle against the Court to
apocalyptic heights. Prayer and Bible reading in public schools were ruled
unconstitutional under the ban against State support for any religious system in
any arena supported by tax dollars. The Evangelical part of our society now
attacked the Court “for taking God out of public schools,” not realizing that
this nation had become a religiously pluralistic nation and that neither
public schools nor public spaces could be used to promote a particular religious
expression. Conservative Christians, accustomed to majority pedestals, could
not see that many public schools were actually functioning as Protestant
parochial schools.
This crescendo of conservative protests broadened when the Court in 1973
supported a woman’s right to get an abortion in the first trimester of pregnancy
and in 2003 when the Court declared that homosexual acts between consenting
adults could no longer be criminalized. Once again the Court’s critics used
the familiar rhetoric trying to put positive spins on their own sexism and
homophobia, a familiar pattern of perfuming prejudices. “Legislating” was again
charged by those who did not or could not understand that affirming human
rights and protecting minority freedoms under the Constitution is still the
primary work of this Court. The fact that today’s Court has had seven of its nine
justices appointed by Conservative Republican administrations has not
stopped this fierce religious attack on this “liberal activist court.” Even when
the Supreme Court halted the counting of presidential ballots in Florida in
2000, overruling the highest court of Florida, on the basis of reasoning so
unprecedented as to be revelatory of little more than raw power, as they awarded
the White House to George W. Bush, there was no halt in conservative
criticism. Probably politics can never be fully removed from the Supreme Court,
though we can hope that in the sanctuary of their lifetime appointments this body
might seek a level of objectivity and reason that has generally been lost in
American politics today.
One final thought: when Judge Alito is confirmed, as I expect he will be,
then for the first time in this nation’s history, the court will have a Roman
Catholic majority of five justices. Two Jewish justices and two Protestant
justices will join them. A few years ago, that would not have bothered me, but
religious lines like political lines have also hardened over the years. In the
2004 election, John Kerry, a devout Roman Catholic, stated that while
personally opposed to abortion, if elected president, he would not seek to impose
his religious convictions on the entire nation. That had seemed to his church a
quite acceptable statement when John Kennedy was a candidate in 1960.
However, some American Catholic bishops pronounced that attitude unacceptable for a
Catholic politician, and suggested that Senator Kerry be refused communion
at Catholic altars. Since 2004 the Vatican has become even more conservative
and imperialistic. The last thing this nation needs is to blur the lines of
separation between Church and State.
History is replete with bitter illustrations of what happens when religious
intolerance is expressed politically. I want visible and unmistakable
assurances from these Catholic justices that they understand that the citizens of
this nation will respect individual faith commitments and individual practices
but only until someone in power tries to impose those commitments and
practices on the whole nation. I, therefore, watch the hearings with intense interest
and expect the Senate to assure me with their votes that my apprehensions
are unfounded.
— John Shelby Spong
_Note from the Editor: Bishop Spong's new book is available now at
bookstores everywhere and by clicking here!_
(http://www.amazon.com/exec/obidos/ASIN/0060762055/agoramedia-20)
Question and Answer
With John Shelby Spong
Dear Friends:
The Supreme Court's decision in the case of Gonzales vs. the State of Oregon
was announced yesterday in favor of the State of Oregon's 'right to die with
dignity' laws and physician assisted suicide under some carefully articulated
guidelines. It was a case in which I filed with the Supreme Court an amicus
brief in support of the State of Oregon. I had previously written a column on
this case that was published on August 23, 2005, entitled "On Death with
Dignity." Subscribers may look it up and reread it if they desire. When the
decision was handed down I issued the following statement to the press and
enclose it here in place of the Question and Answer feature for this week. I think
this is a decision of great import and it received the lead position in the
New York Times' first page on January 18th. The Bush Administration announced
that it was "disappointed in the decision" because, they said, Mr. Bush
wants to encourage "a culture of life." With over 2200 fatalities among American
service personnel in the Iraq War, over 16,000 wounded, over 30,000 Iraqi
deaths and more people executed in Texas than in all the other 49 states put
together while he was Governor, I must say I wonder what he means by "a culture
of life." This is an issue I would love to see debated publicly and in this
column. I welcome your letters.
John Shelby Spong
____________________________________
We rejoice that the Supreme Court has upheld Oregon’s aid-in-dying law. This
decision affirms that states can make policy decisions allowing individuals
to choose a dignified death under strict guidelines and safeguards.
The recent enormous leap in medical knowledge prolongs life beyond our
ancestors’ imagination, but these advances also bring ethical dilemmas. We live
longer but often not better as we face excruciating terminal illnesses. The
choice to die under these circumstances should come when the options for real
living have reached their limits.
Affirming choice as a human right at the last phase of life requires a shift
in thinking about death. Death is not evil or sinful; rather, it is as
natural as our birth. Each of life’s stages, including the last, must be embraced
with vigor.
I challenge those who see the Supreme Court’s decision as a harbinger of
abuse – who imagine scenarios of state-ordered executions of the elderly or
health maintenance organizations curtailing medical payments until a quick death
is achieved. The risk of abuse can be eliminated by investing this
life-and-death decision solely with the affected individual. Results of Oregon’s
seven-year experience with the aid-in-dying law show NO evidence of abuse.
The right to a good death is a basic human freedom. The Supreme Court’s
decision to uphold aid in dying allows us to view and act on death as a dignified
moral and godly choice for those suffering with terminal illnesses.
I am proud to be a volunteer advisor to Compassion & Choices, the largest
organization in the United States committed to improving care and expanding
choice at the end of life. Together, we will press on to replicate Oregon’s
policy in California and Vermont and other states considering this change. We
urge others to join us in this good fight.
Sincerely,
John Shelby Spong
Eighth Bishop of Newark, NJ, Episcopal
Advisor, Compassion & Choices Board of Directors
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://wedgeblade.net/pipermail/dialogue_wedgeblade.net/attachments/20060118/07e81f0f/attachment.htm
More information about the Dialogue
mailing list