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2009 is Not the End

Ronald Dworkin, The Supreme Court Phalanx ((New York Review of Books, 2008)

After nearly eight seemingly interminable years, we are finally coming to the end. In six months, President Bush and his entire administration will leave office. And even if the next president has the last name McCain and not Obama, many American liberals will most likely feel some cause for celebration when George, Dick, and Condoleezza finally depart the White House for good.

Yet, it’s probably best to keep the champagne corked. As Ronald Dworkin reminds us in his series of damning essays first published in The New York Review of Books that are now available in book form in The Supreme Court Phalanx, George W. Bush’s deleterious legacy on the United States will reverberate for years, if not decades, to come. The two Bush Supreme Court appointees, Chief Justice John Roberts and Justice Samuel Alito, have moved the High Court far to the right on the ideological spectrum. The moderately conservative Anthony Kennedy is now the Court’s swing vote—and as evidenced by the Court’s recent 5-4 ruling determining that so called “enemy combatants” have the right to habeas corpus, the sole obstacle preventing the nation from legally adopting barbarous policies best suited to the Middle Ages.

Dworkin, a professor of law and philosophy at New York University, writes a convincing and fluidly readable indictment of both Roberts’s and Alito’s legal philosophies. Dworkin asserts that both men base their judgments not on the Constitution, but rather their own ideological motivations. He fears that the court could likely overturn Roe v. Wade and points out how both men have long been closely affiliated with Republican administrations and the most conservative legal societies. Frighteningly, Alito and Roberts also both seem to support the expansion of Executive Branch power that has occurred during the Bush administration. Bush’s assertion of Executive Branch power has led to a host of legally dubious policies such as warrantless wiretapping, extraordinary rendition, the use of torture, and the indefinite imprisonment of detainees. And because Roberts, Alito, and the Court’s two other most conservative Justices, Antonin Scalia and Clarence Thomas, are also relatively young, the block of four will likely influence the American legal system for the next generation. If another judge is appointed with similarly conservative leanings, Dworkin fears that many of America’s bedrock principles will be overturned. Consequently, in January 2009, Bush will be gone, but if the Supreme Court is any indication, definitely not forgotten. As Dworkin writes in the book’s final essay, when it comes to Bush’s impact on the American legal system, “The worst is yet to come.”


The Brooklyn Rail

JUL-AUG 2008

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