segunda-feira, 16 de junho de 2008

McCain e Oba e a Corte Suprema americana

O Prof. Carlos Bruno Ferreira envia para a postagem essa importante matéria do jornal Washington Post de 15 de junho de 2008 na qual podemos ter subsídios a respeito de como os candidatos presidenciais americanos Obama e MCain estarão situados entre conservadores e liberais.

It Isn't Tilting in The Same Old Ways

By Dahlia Lithwick

With just two weeks left in the Supreme Court's term, everything we thought we knew
about the Roberts court seems wrong. The question now is: Who plans to tell the
presidential candidates?

Both Sen. Barack Obama and Sen. John McCain are finally beginning to campaign as
though the composition of the Supreme Court actually matters. And that's a good
thing, because -- the American public's lack of interest notwithstanding -- the
court counts as much as almost every other issue facing the voters in November.
Assuming that you work, worship, vote, parent, own property the government might
covet or occasionally have sex, the high court will intimately affect your life.
This is particularly true now that the average justice is older than Mount Rushmore
and the next president may well have two or three new court picks in the space of a
few years.

But it's hard to generate much public hysteria over nameless, faceless future
jurists deciding nameless, faceless future cases. And so the court plods along
undisturbed, like the tortoise, while presidential elections zoom by like the hare.

But the dialogue about the judiciary now taking place between the two presidential
nominees is antiquated. (Bear in mind that in picking their way among the minefields
of abortion, affirmative action, same-sex marriage and school prayer, presidential
candidates tend to discuss the courts only in code.) Both McCain and Obama have now
taken predictable stands on the Supreme Court of their dreams. In a speech last
month, McCain offered a jeremiad about the evils of "judicial activism," deriding
the "common and systematic abuse of our federal courts by the people we entrust with
judicial power." Last March, Obama offered up his own judicial ideal: a judge with
"enough empathy, enough feeling, for what ordinary people are going through."

The main problem: Both McCain and Obama start from the premise that the Supreme
Court is tidily balanced among four conservative judicial minimalists, four liberal
judicial empaths and the inscrutable Justice Anthony M. Kennedy, swinging away at
the center. This is a useful model for trying to stir up public concern about the
court's composition, and the decision in at least one blockbuster case -- last
Thursday's ruling that the Bush administration is violating the constitutional
rights of foreign terrorism suspects being held indefinitely at Guantanamo Bay, Cuba
-- did indeed go down along the traditional lines. Still, the current term is
rapidly proving the simple conservatives-vs.-liberals construct to be a thing of the
past. This court term has revealed a series of patterns that aren't so easy to
neatly file away: conservative moderation, moderate conservatism, liberal pragmatism
and pragmatic minimalism. And that's just for starters.

Court watchers have stood dumbfounded all spring as the high court rejected and
renounced the 5 to 4 conservative-liberal splits that seemed to have calcified after
last term's bitter divisions. The end of June 2007 saw a full third of the court's
cases decided by a 5 to 4 margin; as of this writing, the court has decided just
four cases that way this year. At this point last year, Kennedy had cast his vote
with the prevailing five justices every single time. But this term has seen a slew
of ideology-busting unanimous, 7 to 2, and 6 to 3 decisions, which have not just
baffled the experts but also made the usual end-of-term chatter about "activists,"
"minimalists" and "strict constructionists" sound as old-fashioned as the Bee Gees.

Last week, the high court handed down five more unanimous opinions. The week before,
it served up a 5 to 4 split decision in which the dissenters included the usually
conservative Chief Justice John G. Roberts Jr., his fellow Bush appointee Samuel A.
Alito Jr., the moderate Kennedy and the liberal Stephen G. Breyer. We've passed the
point of crying "strange bedfellows" at the Supreme Court. As of this month,
conservative and liberal justices are routinely sharing a toothbrush.

So what has happened? Have the liberals caved, are the conservatives becoming more
restrained, or is something else afoot? Most court watchers have been astonished to
witness the liberal lion, John Paul Stevens, voting with the conservative bloc in
cases upholding Kentucky's lethal-injection process, Indiana's rigid
voter-identification law and Texas's fast-and-loose treatment of a Mexican on death
row. (One commentator joked that 2007 might have been the year in which Stevens
remembered that "he is a Republican.") Linda Greenhouse, who covers the court for
the New York Times, speculated that the court's liberals may be joining with the
conservatives to dilute the force of right-leaning decisions, extracting "modest
concessions as the price of helping the conservatives avoid another parade of 5-to-4

Perhaps all the newfound bipartisanship is explained by the fact that it's an
election year, putting the justices on their best behavior. And of course, there are
still a couple of weeks left in the term, which might not turn out to be so
harmonious after all; the potentially explosive cases still pending include the
decades-in-the-making D.C. gun rights case and a fight over expanding the death
penalty to rapists. But here's one more hypothesis to explain the implosion of
judicial ideology at the high court this year: It may simply have to do with the
strange physics of time.

Last year, dissenting in the school affirmative-action case, the liberal Breyer
lashed out at the slash-and-burn tendencies of the new conservative majority: "It is
not often that so few have so quickly changed so much." Breyer was chiding the
conservatives for their push to eviscerate decades' worth of abortion,
affirmative-action and church-state doctrine in a week-long binge at the end of
June. But even before Breyer's outburst, a key rift had been carved into the court's
right wing: Alito and Roberts were declining to go as far as Justices Antonin Scalia
and Clarence Thomas wanted to in several big cases that logically demanded that
established precedents be overturned. In a church-state case last term, Alito wrote
cryptically that he would not overrule a key precedent but "leave [it] as we found
it." That language seems to have enraged Scalia, who dressed down Alito and Roberts
for clinging to the empty shells of old cases. In yet another case, Scalia accused
the two young conservative justices of "faux judicial restraint." The seeds of a
split between two generations of conservatives had been sown: The younger justices
opted for the tortoise, while their impatient elders chose the hare. Scalia and
Thomas call to mind the famous quip about Gladstone being an old man in a hurry.

The urgency that Thomas and Scalia feel about "fixing" constitutional doctrine in
big, sweeping ways may simply be caused by their lengthy tenures on the bench.
Scalia and Thomas have served for 22 and 17 years respectively. Roberts and Alito
have each served just over two. The young Turks are not sitting on decades of
accumulated frustration and outrage. (Scalia barely bothers to hide his scorn for
his lily-livered colleagues these days; he sneered in his dissent that last
Thursday's Guantanamo ruling "will almost certainly cause more Americans to get
killed.") But Roberts and Alito can afford to move slowly, with an eye toward how
things look to observers already sourly suspicious -- especially after the travesty
of Bush v. Gore-- that the court has become crassly political. And with the court
hearing fewer cases every year -- it heard just 70 this year, its shortest docket in
modern history -- the decision to slow the pace of change is probably a savvy one.

At the liberal end of the spectrum, Breyer and Stevens appear increasingly inclined
to work with the court's conservatives to sidestep the trap of a 5 to 4 stalemate.
Again, that may have more to do with age than you'd think. At 88, Stevens may well
be the justice closest to retirement, and he may not to want to end his brilliant
career with a series of brokenhearted dissents. At 69, Breyer may feel -- much like
Alito and Roberts -- that he can afford to be a bit patient. He may also be learning
the lesson that Sandra Day O'Connor taught in recent years: You can catch more votes
with honey than with vinegar.

But the notion that time heals all wounds may mask what really lies beneath the new
compromises at the high court. Consider how these new majorities of six, seven or
eight justices are actually forged. Time and again, the justices have converged
around the narrowest possible reading of a case -- in effect using the decision as a
placeholder to say, "We'll decide the present case on very narrow facts, but we
reserve the right to revisit the underlying issues in years to come."

This approach certainly represents judicial minimalism, or humility, and it was the
young chief justice's confirmation promise to the American people. But it also does
very little to guide future litigants. It's a deflection -- a constitutional push of
the pause button that allows legislatures and the electorate to catch up. This new
conciliation is a way for the younger justices to defer ideological disagreements
and for the aging justices to pass the baton to their more energetic successors. And
it may simply reflect an understanding on the part of various justices that some of
them have big dreams but very little time remaining, while others have big dreams
and all the time in the world.

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