What the Court Said About People's Rights

On the tennis court a few years ago, Supreme Court Justice Antonin Scalia was heard to shout at the end of a hard-fought game, "5-4, I win!" Just a joke, mind you, about the difference between tennis and judicial scoring.

But in the Supreme Court, "5-4, I win" has come true. Justice Scalia represents the intellectual powerhouse behind a narrow but potent majority that is busy reinventing governance in America to fit its own conceptions.

In its recently ended term, the court struck down all or part of three federal statutes within a week, some kind of record. They were the Brady gun-control law, the law mandating child protection censorship on the Internet, and the law aimed at preventing local jurisdictions from interfering with religious practice.

One's first impulse is to say that this resembles the court during FDR's New Deal days, striking down laws left and right that enhance the federal government's power. But that isn't quite the current pattern.

This court was as quick to slap down states - on religious practice, for example - as the federal government.

The only power it seemed to enhance was its own. But that isn't all of it, either.

More often than not, the majority was denying the existence of a certain individual right. A terminally ill patient has no right to suicide, assisted or otherwise. A religious person has no right to disregard zoning laws. A sex offender has no right to go free after serving a jail sentence.

This comes after an era of judicially supported assertion of rights: civil rights for minorities, a right to privacy, criminal defendants' rights, and a right to abortion.

In the month of Independence Day, one has to ask: Who is supposed to define and protect those "certain unalienable rights" with which we are supposedly endowed by our Creator? If you listen to the court, it's clearly not Congress, recently slapped down for daring to legislate protection for religious practice. Certainly not the president, recently slapped down for claiming temporary immunity in a civil suit.

Thus, a group of conservative jurists, who would have yelled "judicial activism" if this had happened in the liberal Warren court, assert their own hegemony. Funny thing is that back when this republic started in business, Alexander Hamilton predicted that in the balance of powers the judiciary would be the weakest branch.

Is it time now to worry when Justice Scalia, yelling "5-4, I win," is ready to tell us what rights we have - and don't have?

* Daniel Schorr is senior news analyst for National Public Radio.

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