July 16th 2005

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Articles from this issue:

COVER STORY: Federal Labor's crisis of identity

EDITORIAL: Decisive shift in US Supreme Court

LABOR PARTY: The lesson Labor still has to learn

WORKPLACE RELATIONS: No more hurdles for Howard's dismissal laws

RURAL AFFAIRS: Confronting the myths about agriculture

CENTRAL ASIA: China's march on central Asia

REPRODUCTIVE TECHNOLOGY: The dark downside of donor insemination

PARLIAMENTARY DEMOCRACY: Defending the role of parliament

STRAWS IN THE WIND: US fury at Israeli arms sales to China / Not helping the poor / Turn of the tide? / Government's embarrassment

OPINION: Free speech under attack in Victoria

Howard Government's attack on Australian workers (letter)

Why the silence over abortion? (letter)

Ignorance no excuse (letter)

High price of extra water (letter)

To rule or to govern is the question (letter)

Malaria worse than DDT (letter)

BOOKS: THE CUBE AND THE CATHEDRAL: Europe, America, and Politics without God, by George Weigel

BOOKS: MAO: THE UNKNOWN STORY, by Jung Chang and Jon Halliday

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Decisive shift in US Supreme Court

by Peter Westmore

News Weekly, July 16, 2005
A US Supreme Court judge's retirement will enable President George W. Bush to appoint another conservative judge to the court.

The retirement of Justice Sandra Day O'Connor from the US Supreme Court will change the balance in a court which has favoured judicial activism, rather than black-letter law.

Justice O'Connor, the first woman appointed to the Supreme Court, was a Reagan appointee, but once appointed, proceeded to abandon the positions associated with President Reagan.

US Supreme Court justices are appointed for life, or until they step down. It had been widely anticipated that 80-year-old Chief Justice William H. Rehnquist, would resign; but instead, he remains on the bench, while Justice O'Connor has resigned owing to her husband's ill-health.

She was regarded as a "centrist" on the Supreme Court, and her swinging vote often decided matters by a 5:4 majority, usually voting with activist judges who interpret the US Constitution in the light of contemporary legal and political exigencies.

Legislative role

As in Australia, there has been widespread concern in America that the courts have taken over the role of the legislature, ever since the notorious 1973 Roe vs. Wade case opened the abortion floodgates in the USA.

In three crucial cases, the court's liberals recently voted to abolish the death penalty for juveniles, gave local government a green light to take private property for development, and limited government-sponsored displays of the Ten Commandments.

Allan Carlson, president of the Howard Center for Family, Religion and Society, criticised Supreme Court decisions on public display of the Ten Commandments and on property rights.

In relation to the property case, Dr Carlson said that the Court, in contravention of the Fifth Amendment, had decided that if local government thinks a developer has a better user for your home or business, it can be taken from you.

In a pair of Ten Commandments decisions (involving displays in Kentucky and Texas), the Court "continued to misinterpret the First Amendment's Establishment Clause to prohibit any public display of the Decalogue which emphasizes America's Judeo-Christian heritage".

In his scathing dissent, Justice Antonin Scalia said the Court's majority has once again demonstrated its hostility to religion - in particular the religion on which the US was founded.

Carlson commented: "In one case, the court turned its back on America's moral heritage. In the other, it said to government, 'Thou shalt steal, when you believe it's in the public interest.' There's a wrongheaded consistency here.

"Economic conservatives often don't understand that property rights are secured by the moral absolutes reflected in the Ten Commandments.

"It's no coincidence that judicial activists on the Supreme Court have rejected one and undermined the other.

"Social conservatives must make the case that the Ten Commandments are not an archaic code that 'had something to do with the founding of the Republic', but part of the essence of who we are as a people."

He added, "Activist judges are opposed to public display of the Ten Commandments because they are afraid people will take the Decalogue seriously and, in so doing, understand that rights come not from a judge, but - as the Founding Fathers noted in the Declaration of Independence - from the Creator."

The nomination of Justice O'Connor's successor is made by President George W. Bush, but must be confirmed by the Senate.

Over recent years, the Democrats have attempted to frustrate President Bush's appointments by procedural devices, such as the filibuster, a tactic used to delay or stop a vote by making long floor speeches and debates.

Filibusters can only be stopped by a vote of 60 senators.

However, a recent agreement between Democrat and Republican senators will limit the use of the filibuster to "extraordinary circumstances", understood to mean questions of personal ethics or character, and not a prospective justice's legal or philosophical views.

The Bush Administration anticipated the retirement of Chief Justice Rehnquist, who has been a "black letter" judge, unwilling to reinterpret the Constitution according to prevailing trends. The 80-year-old Chief Justice has thyroid cancer and was widely expected to announce his retirement, but will remain on the bench for the moment.

Some observers have speculated that if the two replacements had occurred together, it would have created pressure for one liberal and one conservative appointee.

But with separate retirements, President Bush would be free to appoint justices who reflect his Administration's views. During last year's presidential campaign debates, he said, "I would pick people that would be strict constructionists."

The US Committee for Justice, which has been lobbying for such an appointment, said recently, "We think that the President should appoint someone who will interpret, not make up the law ... that he is entitled to put on the bench someone who is in the mainstream of where Republican presidents have been for 25 years."

  • Peter Westmore is national president of the National Civic Council.

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