EDITOR’S NOTE: Please be warned that this column contains disturbing material.
While disclaiming an “abortion litmus test,” President Obama has signaled his intention to appoint a new Supreme Court justice who shares his concern for “women’s rights.” In other words, of course there’s a litmus test — and it would be foolish to suppose that abortion is the only one.
If there were any justice in the justice-picking sweepstakes, the president would choose a conservative — to correct a historical anomaly. Though Republican presidents appointed 17 of the last 23 justices, only 11 turned out to be anything close to conservative. Some, such as William Brennan (Eisenhower), David Souter (Bush I), and John Paul Stevens (Ford), were leading liberals. Others such as Sandra Day O’Connor (Reagan) and Anthony Kennedy (Reagan) became swing votes, leaning left on key issues.
Not since Byron White (Kennedy) has a Democratic appointee leaned to the right to any significant degree. Surely President Obama can see that this imbalance should be remedied by “spreading the wealth around.”
Seeking a model, he need look no further than Justice Samuel Alito. The lone dissenter in the recently decided case of set United States v. Stevens, Alito demonstrated the sort of sound logic and good sense that should be prized in a justice — as well as the willingness to stand alone, which, even in the rarefied environment of the Supreme Court, cannot be easy.
The case concerned a federal statute that criminalized the creation, sale, or possession of certain types of animal-cruelty videos. It was aimed at so-called “crush videos,” a subset of pornography that appeals to a level of depravity that makes some of us want to resign from the human race. Justice Alito quoted from the Humane Society’s brief:
[A] kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kitten’s eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal’s head. The kitten hemorrhages blood, screams blindly in pain, and is ultimately left dead in a moist pile of blood-soaked hair and bone.
The majority held that the statute was “overbroad” — that depictions of hunting or legitimate slaughtering methods might easily fall within its purview — and accordingly unconstitutional. (However, the Court did virtually invite revised legislation, noting that “We . . . do not decide whether a statute limited to crush videos or other extreme animal cruelty would be constitutional.”)
Justice Alito dissented. He dispatched the hunting example by noting that hunting is legal in all 50 states, while the statute referred to “a depiction of conduct that is illegal in the jurisdiction in which the depiction is created, sold, or possessed.” Further, depictions of hunting would clearly fall within several of the exceptions — “serious religious, political, scientific, educational, journalistic, historical, or artistic value” — enumerated in the legislation.