Everyone has been having fun with "fuzzy mathematics". GW Bush, in the big presidential debate, used these words to deflect attention from the impression that he knew less about the statistical base of his policies than Al Gore. But there were two more important words in the Bush responses that were anything but fuzzy and rather more menacing. They were two names: Thomas and Scalia.
Antonin Scalia and Clarence Thomas are two justices of the supreme court and GW Bush named them as the kind of justices he would appoint if he became president. The unfuzzy actuarial tables suggest that the next president will have to appoint at least one new justice and if GW wins that means a generation of social reform is at risk. Scalia and Thomas are ideological antifederalists determined to push back the authority of the national government.
It is easy to forget that the US is a federal state. The central government can take action at a national level only on certain criteria defined by the constitution. All other powers are reserved to the states, and people and businesses in the states are constantly appealing to the supreme court to declare unconstitutional some penalty or protection based on a federal, not state, law.
One new justice who thinks like Scalia or Thomas will tilt the balance of the court. The risk that abortion rights secured by Roe v Wade will be nullified gets all the attention, but what is at stake is a veto of a wide range of federal laws and previous supreme court rulings affecting a panoply of rights and protections - and future laws passed by the elected congress.
Thomas and Scalia have constructed anti-federalist majorities, based on narrow interpretations of the constitution, with the help of Chief Justice William H Rehnquist, and Justices Anthony Kennedy and Sandra O'Connor. These three are not guaranteed to be antifederalist but they have often given Scalia/ Thomas 5-4 majorities against Justices Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens.
Christy Brzonkala knows the importance of that one-vote majority. A student at Virginia Polytechnic Institute, she claimed to have been raped by two of its football team. Virginia Tech did nothing, so she filed suit in a federal district court against the Tech and the footballers for violation of her civil rights, relying on a federal law, the Violence Against Women Act. It was a bipartisan act, based on four years of factfinding which convinced Congress that gender-motivated violence warranted federal intervention.
Several courts had made awards under the act, but the nine members of the supreme court ruled by five votes to four that the federal government had no power to protect Christy. It was a backward step for women and for civil rights generally. What was extraordinary was that a majority of states were firmly on the side of the federal law. Attorneys-general from 38 states testified to the human suffering and billion-dollar public costs of state enforcement policies and practices that treat violence against women less seriously than comparable violence against men.
Repudiating 60 years' precedent, the court ruled that the federal government is constitutionally forbidden to criminalise possessing a gun in a school zone, cannot regulate tobacco marketing, cannot require states to regulate the disposal of low-level radioactive waste, cannot insist on the states respecting federal laws involving overtime wages, patent infringement and false advertising. A new term promises similar fates for a range of initiatives - and there will be constitutional challenges to the Clean Water Act and the Clean Air Act.
The Thomas/Scalia thesis, which appeals to GW Bush and the Republican right, is that they are not being reactionary, merely faithful to the founding fathers. That is a historical fallacy. Cass Sunstein, the University of Chicago constitutional scholar, is to argue in the American Prospect magazine that the "liberal" four are conservatively in line with the framers of the constitution, and the fiery five are revolutionaries. The constitution was not born from fear of national authority, as Republicans maintain. On the contrary, it was created by the federalists out of fear that state power would stand in the way of a national economic marketplace, even of the birth of a nation.
States will not take a lead in regulation or worker protection when they are in competition for business with other states. Many are notoriously pliable, doing the bidding of special interests. Governor GW's home state of Texas is the most polluted in the nation, but he is satisfied with a self-policing deal he did with the oil industry. You have only to breathe the air in Midland, Texas, to become a fervent federalist. The supreme court should hold a few sessions down there.