TCS Daily


The Stakes Are Twice As High

By James Pinkerton - September 6, 2005 12:00 AM

So now the stakes are twice as high. And the stakes over the future of the Supreme Court were already high, even before the death of Chief Justice William Rehnquist. So debate over new faces on the court will rage, and yet the debating points may be missing the point. Instead of revisiting the last half-century of social-policy litigating, Americans would be better advised to argue about -- and first, to think about -- the techno-cases that are likely to dominate the next half-century.

But maybe it's too late for a forward-looking battle, because the antagonists, on the right and on the left, are already dug in to their familiar positions.

As the conservative Family Research Council put it last year, "When the time comes, a Supreme Court vacancy cannot be considered just one of many issues, but THE fight to end all domestic fights." The FRC, not surprisingly, supports Roberts, whom the group presumes will "strike a great blow against judicial activism" -- activism which, the FRC complained, "is responsible for court rulings establishing abortion as a Constitutional 'right,' eliminating religious displays from public spaces, promoting homosexuality and same-sex 'marriage,' and much more."

On the other hand, supporters of judicial activism, not surprisingly, are lining up against Roberts, who on Monday morning became George W. Bush's choice to replace Rehnquist as chief justice. The lefty Alliance for Justice complains that Roberts has "supported weakening women's rights and civil rights laws, cutting back the vital role of our courts in enforcing legal protections and restricting the ability of the people's democratically elected representatives to enact crucial, nationwide worker, anti-discrimination and environmental safeguards."

And now the Court confronts two vacancies. So there'll be double trouble on Capitol Hill.

But perhaps the hot air about to be expended could end up being so much wasted breath, because the national agenda could be changing, bigtime. A look back at American history shows that the basic nature of the domestic national agenda, from "social" to "economic" to "social," has a way of changing every fifty years or so.

Looking at the period from 1850 to 1900, we see that it was dominated by one huge issue: the Civil War, its run-up and its aftermath. From the Compromise of 1850, to the publication of Uncle Tom's Cabin in 1852, to the Civil War itself, to the assassination of Abraham Lincoln, to the end of Reconstruction in 1877 -- the issue that vexed America most was the giant tragic social issue of slavery.

But if one were to look at the big issues after 1900, they were not social, but rather economic. Privation, even starvation, stalked the nation of 76 million. The "Labor Question" was an overwhelming preoccupation, and that was just for starters. Even more preoccupying were fears of violent anarchism -- it was an anarchist who assassinated President McKinley in 1901 -- and also, of course, socialism and communism.

So for the next five decades, economics dominated the agenda. From 1900 to 1950, the big debates were over not only labor and unionization, but also the regulation of the economy: the Food and Drug Administration, the Federal Trade Commission, the Federal Reserve Board, the income tax. And then came the Depression, which put the federal government in the economic driver's seat, pedaling-to-the-metal on everything from the Mussolini-esque National Industrial Recovery Act to Social Security to the Tennessee Valley Authority.

Parenthetically, during most of this half-century period, the US Supreme Court played a conservative, braking function; it tossed out, for example, the proto-totalitarian NIRA in 1935. But soon thereafter, the left-leaning economic Zeitgeist overcame the Court -- the famous "switch in time that saved nine" -- and the Court went along with most New Deal-ish legislation for the next 15 years.

At mid-century, America was transformed. A strongly Republican country in 1900 (Republicans controlled the White House and both chambers of Congress) had become a strongly Democratic country in 1950 (Democrats controlled the White House and both chambers).

But things were about to change yet again. The hinge year was 1952, when President Truman tried to nationalize the steel industry and the Supreme Court beat him back. Since that decision, Uncle Sam has only rarely attempted a radical takeover of a portion of the economy, and it has met with frustration and rebuff.

Nineteen fifty-two also saw the election of Dwight Eisenhower. While Ike was no conservative in the contemporary sense, in his moderation he nonetheless thwarted the march toward social democracy, even socialism. And so the New Deal was pretty much frozen in place. Yes, the welfare state continued to creep upward, size-wise, but the US economy grew even more rapidly.

Yet with the Depression a fading memory and the American Dream coming within the reach of most of the country's 151 million people, the agenda shifted yet again, back toward social issues. In 1958 John Kenneth Galbraith told us that since we were living in "The Affluent Society", we cold afford to spend more money on fighting poverty, racial injustice, a polluted environment, and so on. Moreover, our material abundance gave us the sense of well-being needed for venturing into post-material issues, from gender rights to self-esteem.

So the second half of the 20th century was about social issues, most obviously race, including such hot topics as civil rights, affirmative action and school busing, and also welfare and crime as related issues. Needless to say, starting with Brown v. Board of Education, the Supreme Court was in the middle of all these issues. In fact, the era of the Warren Court was arguably the zenith of the Court's influence on American life, as the Court -- and other courts inspired by its activist example -- held forth on topics such as school prayer and the role of religion in the public square, the environment, women's rights, abortion, and gay rights.

It would be fair to say that the left won most of the social-issue fights in this period, from 1950 to 2000. Yes, a few liberal crusades, such as the Equal Rights Amendment, were stymied, but for the most part, American society was transformed leftward. Yet a policy vs. politics paradox emerged: Even though the right lost most of the substantive policy battles in that half-century, it won the political battle; the backlash against social-issue liberalism was so strong that a Democratic country in 1950 became a Republican country after the 2000 election, when the GOP controlled the White House and both chambers of congress.

OK, so where are we now? Both left and right appreciate the importance of the Supreme Court. The left sees the Court as its best friend, especially since it's not so good at winning elections anymore. And the right sees the Court as a bastion of the enemy -- at least until it can fill up all nine seats with reliably like-minded souls.

So it's no wonder that both sides have girded their loins for the big battles ahead. But here at the dawn of this new century, we might ask: What sort of issues are likely to come up? Will they be more social? Or economic? Or will they be something else altogether -- technological?

We might consider, as one obvious technological issue, the Internet. Although the Net as a widespread platform is barely a decade old, it has already created a host of issues for courts to wrestle with, from spam to smut, from privacy to piracy. And yet because the Net is so new, it's not so obvious as to where the familiar liberal and conservative groups will line up on the controversies. On "decency" provisions, for example, many liberals join with conservatives in supporting net-strictions, while libertarians of various strains, from the Cato Institute to the American Civil Liberties Union, seem to line up on the side of net-mancipation.

A brilliant article in the August 28 New York Times Magazine by Jeffrey Rosen of The George Washington University Law School outlines another raft of issues that are more technological than ideological -- at least for now. What's the liberal position on brain fingerprinting, for example? Or the conservative position on drug legalization for chronic pain -- sure to be a growing issue for an aging population? And what of data mining, as practiced by both the intelligence community and the business community? And what of controversies based on new biotech, from DNA-based affirmative action to sex selection of children by prospective parents? Will all liberals sit still for affirmative action based on gene-typing that establishes even blood-based nuances of race as the key variable in social spoils-sharing? Will all conservatives and libertarians agree that parents should not have the privacy to shape the composition of their own families?

As Rosen writes of the upcoming Roberts confirmation hearings:

"It would be illuminating for the senators to ask the man who will be, if
confirmed the first new justice of the 21st century some probing questions about the Supreme Court of the future -- including how, in the broadest sense, it should prepare to handle cases arising from the technological and social changes of the coming decades."

And we could go even further, with questions suggesting that most of the issues we face now, economic and social, will be made superseded, even obsolesced. What will happen, for example, to the truism that we are all created equal if human evolution continues -- boosted by improvements in software, hardware, and wetware -- to the point that even if we are created equal by God, we are then recreated unequal by Man? And if we have, say, barcodes delineating our status, from alpha to epsilon?

Of course, maybe even the most avant-garde humans shouldn't get too cocky, because around about 2045, it's theorized that machines will overtake mankind. At which point, will our courts graciously give rights to robots? Or will we quaveringly look to the courts to secure our rights underneath a robot regime?

But closer to the here and now, one last question: As we look toward a half-century dominated by science-based questions, which ideology, left or right, is likely to be most advantaged? Which party, Democratic or Republican, is more in tune with technotrends?

To Chris Mooney, author of The Republican War on Science, the answer is obvious. And while Mooney makes some telling points about, for example, the Intelligent Design movement, he is on shakier ground when he accuses the Republicans of junking science on, say, missile defense. Meanwhile, the indefatigable blogger/gadfly Steven Milloy argues that the Democrats control the franchise on junk science.

Finally, as the left and the Democrats of the last half-century demonstrated, the ideology and the party that wins the policy debate might yet lose the political debate.

Only this much is certain: The stakes for all sides were high to begin with, and now the passing of Rehnquist makes them a whole lot higher.

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