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Thursday, June 29, 2006

Bush is Close to Closing Court Circle

Two recent and unnerving Supreme Court decisions likely provide a glimpse of rulings yet to come, thanks to President Bush paying off his party's far right with judicial appointments.

In one, the court overturned decades of precedent to lower the constitutional protections against errant uses of police power and in the other it sharply narrowed the enforcement of wetlands protection under the Clean Water Act.

In both cases, the president's appointees, Chief Justice John Roberts and Justice Samuel Alito, bonded with the ever rightward Justices Atonin Scalia and Clarence Thomas. The four were joined by Anthony Kennedy, a moderate conservative and potentially the new swing vote, a la Sandra Day O'Connor, although one inclined to swing right oftener and farther than she.
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The Supreme Court has long been conservative, with a majority of Republican appointees. All the noisy, cliché complaints against it — activism, making law from the bench and blah, blah, blah — have been in the service of pushing the court from conservative to reactionary, and Bush, as he promised to be in his first presidential campaign, has been the eager servant of that push.

Take the court's trashing of the 1961 ruling that police must knock and announce themselves even when conducting a raid with a search warrant. The'61 ruling supports the Constitution's Fourth Amendment protection against unreasonable searches and seizures.

That ruling in turn was rooted in the 1921 finding which held that the Fifth Amendment's due-process requirement forbids the trial use of evidence unlawfully acquired — the exclusionary rule. So much for the claims by Roberts and Alito in Senate hearings that they worship at the feet of precedent. In this case they casually bulldozed two precedents going back nearly a century.

The right has griped endlessly about the exclusionary rule. It was letting criminals go free on technicalities, they said. Sometimes, but that effect has been wildly exaggerated for political grandstanding. The current professionalism of law enforcement owes much to the discipline the rule has imposed. Even with the announce-and-knock rule, police have far more than once burst into the wrong addresses, with tragic consequences for the occupants or for officers mistaken for intruders.

In the Clean Water case, the same 5-4 majority ruled that the Army Corp of Engineers, the main agency enforcing wetlands protection, overstepped by including drains and ditches in their calculations. Apparently wetlands get wet by magic rather than from tributaries, and grade-school geography be damned. In this instance, the court even overturned the law of gravity.

Only Kennedy's limited concurrence held the court back from going for the exclusionary rule's jugular and from broadly limiting clean-water enforcement. The other four look to be itching for opportunities to turn the legal clock back by decades and perhaps — Thomas and Scalia especially — centuries.

Bush has salted the federal district courts with ideological conservatives and has worked at packing the crucial appellate bench with appointees whose legal inclinations fall somewhere between way conservative and, oh, neanderthal.

One more Supreme Court appointment and Bush will close the circle.

Tom Teepen is a columnist for Cox Newspapers based in Atlanta. E-mail to:

© 2006 Daily Camera and Boulder Publishing, LLC
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