THE NEXT PRESIDENTS FORTY-YEAR TERM
There has not been a new appointment to the United States Supreme Court in almost 10 years--the longest the court has ever gone without change. Change is coming. If you care about the future of this country, you will cast your presidential vote this November with the Supreme Court, above all other things, in mind.
U.S. Supreme Court Chief Justice William Rehnquist is 79 years old. Hes been on the court for 32 years. Associate Justice John Paul Stevens is 84 years old. Hes been on the court for 29 years. Associate Justice Sandra Day OConnor is 74 years old. Shes been on the court for 23 years.
Supreme Court justices are, of course, appointed for life. It is not unusual for a justice to serve for 20 or 30 years or more--witness the examples above. As life expectancy increases, the tenure of justices will likely increase, as well. Clarence Thomas was confirmed as a justice at the age of just 43. Dont be surprised if he remains on the court for 40 years or more.
There is a good chance that the next president of the United States will get to appoint at least three, and possibly four or five, Supreme Court justices. Rehnquist and Stevens are old; they are almost certain to be replaced in the next four years. OConnor and Justice Ruth Bader Ginsburg (age 71) have had some health problems in recent years; either or both could leave the court soon. Justices Antonin Scalia (68), Anthony Kennedy (67), and David Souter (64) are each at an age when serious health problems are not unusual.
What this means is that the man we elect president in November is likely to determine the fabric of the law in this country until the year 2034 and beyond. This election is not about the next four years, it is about the next forty years.
Forget foreign policy--a president can change that on a whim. (See George W. Bushs about-face regarding the United Nations in the last year.) Forget economic policy--the economy generates too much of its own momentum to be controlled by politicians. Forget legislative policy--elections in the House of Representatives can turn that upside-down every two years.
But the rulings of the Supreme Court affect all of us immediately and for generations. A Supreme Court decision today will control the law for decades. Witness last weeks decision that, according to most analysts, left federal sentencing guidelines in chaos.
In the past, presidents appointed justices who defied liberal and conservative labels. President Eisenhower, a Republican, appointed Earl Warren, who was later villified by conservatives as a superliberal. President Kennedy, a Democrat, appointed Byron White, who voted against abortion rights in Roe v. Wade. But things are different today. If George W. Bush is elected, his neocon handlers will demand that he appoint justices as predictably and consistently conservative as Scalia and Thomas, who almost always come down on the side of the police and the corporations. If John Kerry is elected, he is almost certain to appoint liberal justices like Ginsburg and Stevens, who believe in individual privacy rights and strict limits on police powers.
Over the next thirty years, the soul of our nation will be up for grabs. Two things make that inevitable:
1) There will be more terrorist attacks on U.S. soil--terrorists never go away--and when that happens, it is almost certain that the response of the Congress will be to pass laws that put more and more power into the hands of the FBI, the CIA, the police, and other elements of the so-called security establishment. Congress will also pass laws that cede more unilateral, unchecked power to the executive branch. That is what Congress has always done in the face of fear; its what the Alien and Sedition Acts did in 1798 and what the U.S. Patriot Act did in 2001. Today our nation is closer to an imperial presidency, with the executive branch having greater unchecked powers and more control over the dispensation of justice, than at any time since the Sedition Act of 1918.
2) Technology will bring Big Brother closer to reality than ever before. Progress in genetic engineering, nanotechnology, robotics, computer technology, and surveillance systems will make it possible, even easy, for the government to find out everything about us and to use it in ways we can never discover. (A relevant digression: researchers are very close to increasing life expectancy to 120 years or more. The next set of Supreme Court justices may serve for sixty or seventy years or more. This is not science fiction.)
Together, these facts mean the next Supreme Court will decide where on the scale from fascism to democracy this nation will settle for at least two generations. These are some of the questions that that Supreme Court will have to answer in the next 40 years:
¥Does the executive branch, in the name of national security, have the right to read our e-mails without a warrant?
¥Does it have the right, without a warrant, to examine what we look at on the Internet?
¥Does it have the right to put cameras in every public place to watch every citizens public movements?
¥Does it have the right to use nanotechnolgy or heat-sensitive cameras to watch us through the walls of our bedrooms in the name of national security?
¥Should every citizen be required to carry a national I..D. card with our genetic fingerprint on it?
¥Should that national I.D. card contain a chip, like those in toll-booth E-Z passes, that can tell the government every store weve entered and every house weve visited? Should it also contain a global positioning chip that can tell the government where we are at any moment?
¥Should the FBI be permitted to create a DNA profile (from loose hair samples, for instance) of any citizen it wants, in the name of national security?
¥Should insurance companies or employers or police be given access to our DNA profiles, to find out if we might be prone to, say, heart attacks or alcoholism or criminal behavior?
¥Does the government have the right to tag people it thinks might have terrorist potential by implanting computer chips under their skin, perhaps at birth?
All this, of course, goes beyond questions that the Supreme Court must answer much sooner, in the next two or three years:
¥Is the so-called War on Terror really a war, when no war has been declared by Congress?
¥Does the War on Terror--an expression with no meaning in the law--justify giving the President unending war powers?
¥Can any President, ever, hold people in jail indefinitely, without giving them access to courts not controlled by the executive branch?
¥Can the executive branch order the torture of prisoners for any reason?
¥Can the FBI or the Transportation Security Administration maintain a list of people who are not allowed to fly on airplanes?
Let me finish with a current real-world example of the kind of issue the next Supreme Court will have to decide. Today, the Departments of Justice and Homeland Security fund a program called Matrix, which stands for Multi-State Anti-Terrorism Information Exchange. The Matrix program includes a computerized data-mining system that provides state and federal agencies with massive amounts of information about U.S. citizens. Recently, the company that came up with the Matrix data-mining program provided the FBI, the Secret Service, and the Immigration and Naturalization Service with a list of 120,000 people in the United States who have high terrorist factor scores. Because of their names, their ethnicity, their neighbors, their divorce records and who knows what else--their friends? their political columns?--120,000 people in the U.S. are now on a list. You may be there for reading this. I may be there for writing it. The government isnt really saying how the list was determined or who is on it. Theyre not saying if the list is being used to decide whose luggage gets searched at the airport or whose emails get read or who gets stopped in traffic. Very little has been revealed about Matrix.
The current administration doesnt want you to know about Matrix, but it is real. (For more on the subject, go to http://www.informationweek.com/showArticle.jhtml?articleID=18311890 or http://www.aclu.org/Privacy/Privacy.cfm?ID=14257&c=130 .)
Sooner or later, the U.S. Supreme Court will have to decide if Matrix represents a constitutionally appropriate defense of national security or an unconstitutional threat to the privacy of American citizens. Antonin Scalia and Clarence Thomas, George Bushs declared favorite justices, are on record as saying that the U.S. Constitution does not give American citizens the right to privacy. For the sake of your children and grandchildren, you might remember that when you vote in November.