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June 16, 2005

The Thomas Conspiracy

Never let it be said the half-vast editorial staff doesn't look out for you. After all, why shop at Information Clearinghouse when you can satisfy all your Conspiracy Theory Needs right here?

Alert readers will no doubt recall that just a few short months ago, Jeff Rosen was madly flogging the Constitution-in-Exile Conspiracy.

The fiendish members of this plot took the backward view that judges ought to try reading the actual verbiage penned by our Founding Fathers instead of haring off to nations like, say... France in search of a hand-rolled Gauloise and a Derrida primer (the better to deconstruct the Commerce Clause whilst staving off that annoying sense of anomie that comes from eating one too many confits).

Membership in this clandestine Brotherhood must have been an awfully well-kept secret, for the arcane and conspiratorial nature of the plot was such that the rank and file apparently went about their business for decades, blissfully unaware they were engaged in a desperate struggle to overthrow the Republic. But Evil will brook no delay. The Cause marched on. Sans soldiers, sans leader, even...until Gonzalez v. Raich reared its ugly head:

The most radical dissenting opinion was written by Thomas. Thomas has proved to be the most reliable ally of the movement to resurrect what some conservatives call the Constitution in Exile, referring to limitations on federal power that have been dormant since the New Deal. In his dissent, Thomas said that courts should take it upon themselves to decide whether congressional regulations are "appropriate" and "plainly adapted" to executing powers explicitly listed in Constitution. Thomas's logic would uproot more than a century of Supreme Court cases, including the 1942 wheat case, [Ed. Note: 'SWounds!... not the wheat case!] and could paralyze the government's effort to enforce myriad regulations, including environmental and labor laws. As Stevens pointed out, Thomas's reasoning would also call into question Congress's power to regulate the possession and use of pot for recreational purposes, an activity that all states now prohibit.

Thomas. Mein Gott Im Himmel!, who would have guessed it! That pudgy, avuncular-looking little man, suddenly rising up in his black robes like the Lord of the Nazgul. Stooping to pick at the flesh of a Woman's Right To Choose and grabbing welfare dollars from the hands of baby-Daddies all over this great nation! Sure, he may look like a teddy bear, but he's [[[shudder]]] worse than Scalia!

But like an avenging Angel, Jeff Rosen came to our rescue. From the pages of the NY Times, Rosen strode forth to remind John and Jane Q. Public who's really on their side:

An independent poll conducted by Quinnipiac University found that 55 percent of respondents thought the filibuster should be used to keep unfit judges off the bench, as opposed to 36 percent who thought it should not. Moreover, the country seemed less worried about partisan judges than about partisan senators and representatives. In the days before the deal, a CBS News poll found that 68 percent of respondents said that Congress ''does not have the same priorities for the country'' as they do. By contrast, the Quinnipiac poll found that a 44 percent plurality [Ed. Note: this, sports fans, is what's commonly known as "less than half" for the non-statistics majors out there] approved of the way the Supreme Court is handling its job.

Put another way, it would seem that, on balance, the views of a majority of Americans are more accurately represented by the moderate majority on the Supreme Court, led in recent years by Justice Sandra Day O'Connor, than by the polarized party leadership in the Senate, led by Bill Frist and Harry Reid. Congressional Republicans and Democrats are pandering to their bases, wooing conservative or liberal interest groups that care intensely about judicial nominations because they're upset about the current direction of the Supreme Court. Meanwhile, the country as a whole seems to be relatively happy with the court and appears to have no interest in paralyzing the federal government over a confirmation battle that would do little to affect the court's overall balance -- a battle that is likely to take place this summer if Chief Justice William Rehnquist steps down.

How did we get to this odd moment in American history, when unelected Supreme Court justices are expressing the views of popular majorities more faithfully than the people's elected representatives?

More importantly, how did we get to this odd moment in American history, when a law professor is waving silk handkerchiefs in front of our eyes and selling us snake oil? What on earth is he up to?

Remember a little thing called FDR's Second Bill of Rights? All this talk of a shadowy Constitution-in-Exile movement - a plot to bring back a Constitution that (last time I checked) is already here (even if the majority of our sitting justices have determined to ignore it in the hopes it will somehow just 'go away') is nothing more than a lot of smoke to cover the Constitution in 2020 "movement" so beloved of law professors.

And get this: unlike the Constitution in Exile Conspiracy (whose poor members can't even find their decoder rings) the Constitution in 2020 folks have had real meetings and conferences!

But you don't see conservatives running about waving their arms (except sarcastically, perhaps) shouting, "Man the battlements, men! Egad! There's a...conspiracy afoot!"

Mr. Rosen claims the judiciary, who are unelected, better represent the will of the people than Congress, who after all can be turned out of office every few years if they don't do what we want. So why don't we vote the bums out then? Perhaps we are getting the government we deserve. He cites a poll as evidence that America is being taken to the proverbial cleaners.

Oh really? An independent poll? Strangely, this poll reached a different conclusion:

The public's image of the Supreme Court has eroded over the past few years, with just over half of those in a new poll saying they have a favorable view of the high court.

For more than a decade, at least seven in 10 people had a favorable view of the high court. In January 2001, just after the Court ruled that President Bush was the winner of the 2000 election, 68 percent had a favorable view.

More importantly, what does the public think of landmark SC decisions?

Lawrence v. Texas: Most Americans oppose gay marriage. Hmmm.... Legislatures 1, Courts 0

Glassroth v. Moore: Most Americans opposed removing 10 Commandments. Well that's not good either.

Roe v. Wade: Support for Abortion Conditional (sounds to me like a pretty good argument for letting the state legislatures enact the will of the people. It's called democracy.)

But these are just the few that came to my mind because they were controversial. Come to think of it, who cares what the public thinks of Supreme Court decisions? One reason judges are appointed is precisely to keep them above the pressures of public opprobrium. It matters whether their decisions are just, and justified in law and precedent. It matters little whether they are popular.

I submit that the average American has absolutely no idea why the Supreme Court rules the way they do. They don't read SC opinions. They don't understand the legal issues involved. They have no idea which justice ruled which way on which case. So polls, in this case, don't seem terribly useful.

Or relevant, for that matter. We still operate under a Constitution that sets forth the way our government is supposed to work. It is not to be overturned because some focus group determines that people "like" the Supreme Court and "trust" them to legislate from the bench in defiance of the law, no matter what Mr. Rosen and his buddies from the Constitution in 2020 conference (several of whom advocated bringing back FDR's 2nd Bill of Rights, not by amendment to the Constitution but by judicial activism) would like the more gullible among us to conclude.

Nice try, but no sale.

Posted by Cassandra at June 16, 2005 05:45 AM

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OK. I'm going to have to come back later (after the four hours of meetings, the 8th grade graduation (what's up with that?) and the trip to the dentist to replace the filling I lost eating a caramel in Chile) to read the whole thing. I got stuck on this line: "instead of haring off to nations like, say... France in search of a hand-rolled Gauloise and a Derrida primer..."


Posted by: TigerHawk [TypeKey Profile Page] at June 16, 2005 08:40 AM

You know... usually I don't lose people until at least the 4th or 5th sentence of my posts...

sigh :)

Posted by: Cassandra [TypeKey Profile Page] at June 16, 2005 09:13 AM

You know, it's a funny old world. They call it the Constitution in Exile.

I just call it the Constitution.

Posted by: Jimmie [TypeKey Profile Page] at June 16, 2005 09:22 AM

But see Jimmy, that's what makes it such a great conspiracy. You don't even know you're part of it. You're so far intrenched in it, you just think it's just plain ole' common sense.

Posted by: Masked MenaceĀ© [TypeKey Profile Page] at June 16, 2005 12:06 PM

You obviously didn't get the memo.

It's totally obvious that Jimmie's the Maximum Leader.

Posted by: Bush Ate My Soul... [TypeKey Profile Page] at June 16, 2005 12:16 PM

Oh, carp! How could I have been so blind. but now what will I do, I can't be in the conspiracy if I know who leads it. Thanks for ruining it for me.

I bet you tell people the endings to movies too, you big meanie.

Posted by: Masked MenaceĀ© [TypeKey Profile Page] at June 16, 2005 01:35 PM

Great BAMS! Thanks for ruining it for me. I was telling everyone that didn't know they were in the Constitution in Exile conspiracy that I was their leader. Then I had them fetch me a coffee. But you had and to go tell everyone it's Jimmie!

Posted by: KJ [TypeKey Profile Page] at June 16, 2005 03:12 PM

It's okay. Apparently I'm allowed to grant Priveleged Minion status under Article 3 of Section 2 (the hidden part that's written in lemon juice. You can only see it if you hold the Constitution over a candleflame on the night of the second full moon of the year).

Your coffee-fetchers are still Constitutionally obligated. Getting non-dairy creamer, however, is out. It's one of those pesky emanations of a penumbra of the 15th Amendment that horrible revisionist Scalis discovered a couple years ago (Constitution in Exile Lackeys v. Cremora)

Posted by: Jimmie [TypeKey Profile Page] at June 16, 2005 03:41 PM

I hated that decision. Scalia is such a con - he probably celebrated with an orgy, complete with Ruth Bader Ginsburg, two zaftig light opera singers and a vat of slightly chilled non-dairy creamer.

I never get invited to the really good parties.

Posted by: Bush Ate My Soul... [TypeKey Profile Page] at June 16, 2005 05:58 PM

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