You have rights -- they just aren't enforceable
In Bush World, the federal court system is fast becoming the Catch 22 system. On Friday an appeals court in Ohio (sigh) ruled that even if Bush's secret, warrantless domestic spying programs are unconstitutional, lawyers and news media folks don't have legal standing to challenge them. The only people who would be eligible to go to court and object to them, according to the Sixth Circuit, are people who can prove that they themselves are being spied on.
Of course, they can't possibly know they're being spied on, because the program is secret. Ta da! There ya go. Any questions?
This is right in line with the Supreme Court's ruling in late June that if the executive branch of the federal government tries to establish a religion in violation of the First Amendment, regular citizens don't have standing to challenge it. Therefore, in effect, it's not clear that anyone can go to court to stop the President from doing it.
It's perfect for the regime of Nasty Dick Cheney, isn't it? Of all the mindscrews that have been applied over the last six and a half years, the "concept" of constitutional rights with no meaningful remedies is likely to be the most memorable.
I wish I were making this stuff up. The religion case is particularly troublesome, because the Supreme Court has held for quite some time now that if Congress tries to establish a religion, average Joes and Janes do have standing in court to try to stop it. But to this Supreme Court, the President is different, and his or her actions don't get the same judicial review that legislative acts do.
After all, as one right-wing commenter on this blog has pointed out, the Bill of Rights says merely that "Congress shall not" do this and that -- it doesn't say anything about the President, the FBI, or the CIA. And although it's been settled law for many decades that the same rules apply to both the legislative and the executive branches, the current crop of judges, mostly appointed by Gipper, Wimp Sr., and Wimp Jr., are themselves judicial wimps, determined to nullify their own jobs and largely neutralize the judicial role in what was once known as our system of checks and balances. Soon after they reverse Roe v. Wade (three years max), they'll be after Marbury v. Madison, which established judicial review under the Constitution of the acts of the other two branches.
You don't like it? Right after these guys get done genuflecting to Pope Benedict, they'll tell you that your only recourse is to vote the rascals out. Don't expect the courts to do anything.
If you want to see what the Bush Court is really about, the signature case of the past month is this one. A suspect was convicted of murder, and a federal judge hearing his case explicitly gave him 17 days to appeal the denial of habeas corpus -- habeas being a centuries-old court procedure, guaranteed by the Constitution, which allows those convicted of crimes to appeal their convictions. The judge explicitly gave the man a 17-day deadline. And he met it, filing an appeal on the 16th day.
But oh, no. The federal statute on appeals in this situation gives you only 14 days, and so even though a federal judge told this person he could appeal until day 17, his appeal couldn't be heard.
So nowadays, when a federal judge explains the law to you, you're supposed to go back to your prison cell and make sure that he or she got it right. If you don't, and the judge is wrong, it doesn't matter what else the judge may have screwed up in your trial -- you stay in jail, or go to your death, I guess, if that's your punishment.
This is justice? It is to the Honorable Clarence Thomas, the Human Middle Finger of George Bush Sr., who's in charge of your civil rights now. He survived his "high-tech lynching," but that doesn't mean he's going to stop your real-life one.
Yes, it is scary. And there's not much that can be done about it. The oldest of the five Supreme Court justices with the hand grenade pins in their teeth are the Two Tonys: Scalia, who just turned 71, and Kennedy, who hits that age in two weeks. They're likely to be around for quite a while longer -- a decade or more -- and by the time they're done, it will be a frighteningly different legal landscape from the one we have now. The civil rights revolution has been on the run since Nixon started remodeling it in the early '70s, and now it's clearly being routed. Guantanamo is next on the High Court's agenda -- I shudder to think what's going to come out of that. Combined with increased technological intrusion into our privacy, the nation is approaching what the parents and teachers of the '60s would have told us was a police state.
What's the answer, then? Hard to say. Obviously, a Democratic President would help -- and one who's good for two terms. At least a couple of the liberal justices on the Supreme Court will no doubt be leaving us over the next eight years, and we can't let this get any worse. Can you imagine what Giuliani (another genuflecter) or Fred Cheney Thompson would do with two appointments to the Court? Or picture a couple of Romney appointees.
Meanwhile, you can also pray that Justice Kennedy comes to his senses, but I doubt that will ever happen now that the Bush Boys have his ear. It's all starting to make sense to him now.
The only realistic comfort at this point is to hope for the pendulum to swing back in 20 or 30 years. Folks my age may not live to see it. But teach your children well. It didn't have to go this way, and nothing's forever.