Tuesday, October 04, 2005
Miers ushers in “Age of Aquarius”
There seem to be three schools of thought on Harriet Miers. The first is that of the Skeptical Left: You’ve got to be kidding. No, really. Who’s the real nominee? Variations on this include Rox’s suggestion that Miers is an elaborate head-fake, that she’ll be scuttled before too long and replaced by Janice Rogers Brown when the DemocRATS complain that she’s not qualified for the job. That doesn’t seem as likely as it did even 24 hours ago, though, because everyone to the left of John Ashcroft, from Harry Reid to Big Max, agrees that Miers is about as mild as a Bush SCOTUS pick can possibly get, and they’re OK with that. So if she’s scuttled, she’ll be taken down by the Other Side. If that happens, all bets (even yours, Wild Bill B.) are off the table.
The second is that of the Wary Left: maybe she’s a stealth candidate the like of which we never imagined. Maybe she’ll be placed on the Court in order to shield Bush and company from future indictments, as Digby suggests: “With the election fixing, gerrymandering, corruption and executive power cases coming before the court over the next few years, her position will be very important to the GOP machine.” Maybe she’ll also put an end to baseball’s antitrust exemption; maybe she’ll deal the final death blow to the Fourth Amendment; maybe she’ll wreak havoc on zoning law as we know it. Hard to say, but something must be afoot.
The third is that of the Disappointed, Depressed, and Demoralized Right: I was so hoping for Vlad the Impaler. Now I worry that my Impaler will never come.
But all you people are wrong. You are trying to assess the candidacy of Harriet Miers by looking at her past (not much to go on there!), or by estimating George Bush’s present political capital (disappearing faster than the polar ice caps!). These are inevitably flawed methods to bring to bear on such an important subject. Instead, we should focus on analyzing the future. And thanks to Google’s brand-new feature, “Future Search,” you can check out the full record of Justice Miers’s service on the Supreme Court.
It’s all right there on the Future Internets: her famous declaration in early 2006 that Roe v. Wade was wrongly decided . . . and that a woman’s reproductive rights should be predicated on the equal protection clause of the Fourteenth Amendment instead! Pro-life groups were especially outraged when Justice Miers closed her opinion with a sentence that many legal analysts interpreted as a repudiation of the American religious right: “Psyched you all out, didn’t I?” Justice Miers then followed this decision with a stunning series of rereadings of Fourteenth Amendment case law, reaching all the way back to the 1886 case of Santa Clara County v. Southern Pacific Railroad, which first established the principle that corporations are “persons” under the Constitution. “No way are corporations persons,” wrote Miers in June 2006, deftly undoing 120 years of precedent and restoring to the Fourteenth Amendment its original function of extending the scope of U.S. law to actual living people (particularly freed slaves). “Check out Section Three of the Amendment if you don’t believe me,” Miers wrote, in the famously colloquial style that won her legions of admirers and epigones throughout the legal profession. “There’s no question that ‘person’ means ‘a guy’ or ‘a woman,’ not ‘a commercial entity.’ How could Acme Corp. or Amalgamated Products Inc. serve in Congress or as an elector, or be a state legislator, or hold any office, civil or military, under the United States, et cetera et cetera et cetera? It doesn’t make any damn sense.”
Perhaps the most controversial opinion Miers wrote during her time on the bench—even more surprising than her revocation of baseball’s antitrust exemption in 2009—came in the landmark case of Bush (Jeb This Time) v. Obama/Bérubé (2016), in which Miers extended her analyses of the equal protection clause to the point at which she insisted that Bush v. Gore was wrongly decided. Although the ensuing years saw much confusion, as Congress agreed to reset the calendar at December 12, 2000 and strike down every executive order and administrative decision issued by the Bush Administration, most legal analysts agreed that Miers’ bold stroke had, in the words of Laurence Tribe, “righted an unbearable wrongness, and removed a terrible stain from the record of Constitutional law.”
Miers was not without her detractors. Her fellow Justice, Antonin Scalia, thought little of her as a legal mind, and took to writing withering dissents as Miers’ influence on the Court grew. Scalia was particularly appalled at Miers’ reasoning in Putnam County Soil and Water Conservation District v. U.S. (2012), in which she wrote, “When the moon is in the seventh house, and Jupiter aligns with Mars, then peace will guide the planets and love will steer the stars, 539 U.S. 558.”
“Mystic crystal revelation indeed,” wrote Scalia, in one of the shortest dissents in the history of the Court.
Through it all, Miers remained humble and self-effacing, saying only, “let there be peace on earth, and let it begin with me.”