[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 



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