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11/23/2004: "Litmus Test? How About Spongeworthiness?"

I read a great piece by columnist Ann Woolner that few people have seen because it was on a relatively exclusive service. I�ll spotlight the key ideas. She opened the piece with a reference to Estelle Griswold, a 61 year old from Haven, Connecticut when she was arrested in her office. Her crime? Helping married people to get contraceptives. This happened in 1961. She and her co-defendant, Dr. Charles Lee Buxton, had been operating the Planned Parenthood Center of New Haven. Note that this Center counseled only married women. The case produced Griswold v. Connecticut, where the Supreme Court ruled 7-2 that people have a constitutional right to privacy in the marital bed, even though the Constitution doesn't exactly say so. This is a great example of a right that could well be lost if Bush is successful in packing the Supreme Court with ideologues like Clarence Thomas and Antonin Scalia. Another is the constitutional right of parents to educate their children as they see fit, a right also not spelled out in the Constitution. Scalia and Thomas are dangerous to all of the liberties the court has �discovered� over the last several centuries because 1) They supposedly see no constitutional rights not spelled out in the Constitution and 2) They have no respect for Stare Decisis. This is a Latin term meaning �old decision� (always knew that high school Latin course would be good for something some day!) The relevance to the Supreme Court is that it is a fundamental principle of American justice that once a court decides an issue, it sets a precedent that must be respected by all future courts (always knew that Firstie Constitutional Law course would pay off some day!) The alternative is chaos, where litigants are encouraged to bring contentious issues back to the courts until they get the answer they want. Only in the most extreme circumstances does the Supreme Court reverse a previous decision. One example was that of Dredd Scott, the very citation that Bush made in the debate when asked about how he would make Supreme Court decisions. The irony of all of this is that the original Dred Scott decision, which upheld the Constitution�s explicit language condoning slavery, is an example of what happens when the Constitution is interpreted according to strict constructionism. It produces results that everyone knows to be out of touch with reality, like suddenly making it illegal to use contraceptives or educate your children the way parents would like. Bush certainly doesn�t want the latter to go away (which is why I used the word �supposedly� above). So here�s how it might play out. He and his �strict constructionist� ilk want to have their cakes and cookies too, redoing 200 years of Supreme Court decisions as if they had been making the rulings all along. The result, of course, would be keeping the rulings they like and dumping the ones they don�t. So, like Elaine on Seinfeld, maybe it�s time to start hoarding those contraceptive sponges!