Supreme Court needs more balance

By Mona Charen: Syndicated columnist

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 historic 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 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 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. 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. (Though 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.”)

Alito dissented. He dispatched the hunting example by noting that hunting is legal in all 50 states.

As to tail docking and slaughtering methods, Alito advises that since the statute could only reasonably be interpreted as criminalizing depictions of animal cruelty as defined by state and federal law, and since those practices did not qualify, a video depicting them would not be within the law’s scope.

Crush videos and other depictions of animal cruelty, Alito forcefully argues, are directly analogous to a category of speech that the court has excluded from First Amendment protection, child pornography. As with child porn, the conduct depicted in crush videos is nearly impossible to curtail without criminalizing the sale and distribution of the resulting product. These nauseating and repellent acts are not performed before a live audience but only to feed the video trade.

The majority’s stretch to imagine hypothetical scenarios in which the statute might infringe other speech seems farfetched compared with Alito’s more realistic analysis. But wisdom is not determined by majority vote.

Mona Charen writes for Creators Syndicate. She may be contacted through the website:
www.creators.com