here are few areas of public policy where the impact of the presidential election will be quite as stark as the makeup of the U.S. Supreme Court. The next president could potentially appoint two or three new justices in a single term, giving the winning candidate the opportunity to radically reshape the Court for a generation to come.
The Courts most liberal member, John Paul Stevens, is eighty-eight years old and likely the first to retire. Ruth Bader Ginsburg, another liberal, is seventy-five years old and reportedly would like to step down. They may be joined by David Souter, the sixty-nine-year-old Republican appointee who frequently votes with the liberal bloc. But regardless of who wins the White House, the Court will probably get more conservative. Stevens is a judge from another era, and its unlikely that someone with his bearings would survive Senate confirmation today. So his replacement, even if chosen by a Democrat, is likely to be to his right. The question will be just how far and on what issues.
Even today, one still encounters the lingering perception that John McCain is secretly more liberal than he appears, and is only bandying about talk of judicial activism to mollify the religious right. Its true that McCains relationship with that wing of the party is not a cozy one, but its equally true that McCain is a genuine conservative. He has never voted against a GOP Supreme Court nominee, including Robert Bork (opposed by seven maverick Republican senators) and Clarence Thomas (rejected by two). He has voted 159 times to support George W. Bushs judicial nominees. As Sarah Blustain recently noted in the New Republic, McCain has voted on 130 reproductive rights measures during his Senate career, and has sided with anti-abortionists for 125 of them. McCain said in February last year, “I do not support Rove v. Wade. It should be overturned.”
While the contrast between Barack Obama and McCain on hot-button social issues couldnt be clearer, to focus exclusively on abortion or separation of church and state is ultimately distracting. The Supreme Court hasnt heard a great deal of these cases lately, and this pattern is likely to continue for the near future. The areas where McCain may have the biggest influence include the growing number of business cases on the docket (in which McCains choice of judges would surely share his own ardent belief in deregulation) and questions of presidential power.
John McCains Court, in fact, would look almost exactly like George W. Bushs. McCain has said repeatedly that he would appoint justices in the model of John Roberts and Samuel Alito. By the conclusion of Robertss second term this year, the Court had undergone a historic shift to the right. His Court has significantly restricted the average persons access to the legal system, all but eliminated equal pay lawsuits, destroyed efforts to desegregate public schools, and made the Court an even friendlier place for well-funded business groups looking to insulate themselves from liability for wrongdoing. As Justice Stephen Breyer lamented, “It is not often in the law that so few have so quickly changed so much.” By all indications, the Roberts bloc would like to change far more.
During future terms, the Court is likely to consider what checks, if any, should be placed on a presidents power. Earlier in the campaign, McCains statements on this subject were fairly moderate, but they have since been belied by more recent pronouncements and a telling choice of legal advisers. Chief among the advisers is former solicitor general Theodore Olson, the dean of the radical-right legal movement. As an assistant attorney general in the Reagan Justice Department, Olson was a zealous advocate of executive authority, writing internal opinions in support of the unitary executive theory and triggering a mini-scandal by issuing sweeping claims of executive privilege when Congress was investigating the Environmental Protection Agency for corruption. (Olson was later investigated by a special prosecutor for allegations of perjury related to the incident, though he was never charged with a crime.) Like the Bush administration, Olson takes an aggressive view of presidential authority, and he is likely to push for more executive power absolutists should McCain win.
Since Olson joined his team, McCain has been more public about his views favoring executive power, especially in terrorism cases. But his legislative record has long been quite clear on that point. McCain was involved with drafting, and voted in favor of, the military tribunals act that allowed the president to prosecute detainees held at Guantanamo outside of the federal court system. This summer, the Supreme Court ruled in Boumediene v. Bush that the legislation is unconstitutional, and that detainees held at Guantanamo have the right to challenge their detention in federal court. After the decision, McCain initially noted that while he wasnt wild about the decision, he reiterated his support for closing the detention facility. A day later, he was on record blasting the ruling as “one of the worst decisions in history.”
Three of the four votes for the Boumediene majoritySouter, Ginsburg, and Stevenscame from justices on the verge of retirement. If any one of them had been replaced with an Alito- or Roberts-style justice, the detainees would have been flat out of luck and McCains vision would have prevailed.
Elsewhere, a future McCain Court is likely to halt efforts to limit the application of the death penalty, which have succeeded even with the current crop of justices. McCain has criticized those decisions, particularly one written by Justice Anthony Kennedy that banned the execution of juveniles. Alito, one of McCains model judges, seldom saw a death sentence he couldnt uphold while on the lower federal court. And if Alito is McCains model, immigrants, whose many cases are making their way to the Court, will also find little mercy from McCain appointees. As an appellate court judge, Alito reviewed the decisions of the Board of Immigration Appeals, which has become notorious for its many incompetent and erroneous rulings. Alito, however, showed the board almost total deference.
arack Obama is, of course, a former lecturer on constitutional law, and cares deeply about the law in general. He has a clear judicial philosophy with obvious implications for cases involving labor, immigration, race, and discrimination. He voted against Robertss confirmation because “he has far more often used his formidable skills on behalf of the strong in opposition to the weak,” and rejected Alito because “in almost every case he consistently sides on behalf of the powerful against the powerless.” And during one of the primary debates, he observed that “part of the role of the Court is that it is going to protect people who may be vulnerable in the political process If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, thats the kind of person I want on the Supreme Court.”
One of Obamas judicial advisers has said that Obama wouldnt seek to clone any of the sitting justices, but would prefer someone in the mold of Justice Robert Jackson, a Roosevelt appointee and New Dealer who signed on to Brown v. Board of Education and later served as a prosecutor during the Nuremberg trials. Jackson is an interesting and unusual favorite. He didnt go to college, but apprenticed in a law firm and attended two years of law school before passing the bar at age twenty-one. One of his most famous opinions helped to overturn a public regulation requiring schoolchildren to salute the American flagstill one of the most widely quoted opinions on issues of individual rights.
But today, Jackson is perhaps most known for an opinion on the limits of presidential power. Obamas views on this topic stand in blunt contrast to McCains. Obama has promised to restore the right of habeas corpus to terrorism detainees and revoke executive orders issued by the Bush administration that overstep the constitutional bounds on a presidents power. In his time, Jackson was an eloquent, if pragmatic, defender of such bounds. In Youngstown Sheet and Tube Co. v. Sawyer, the Supreme Court reversed President Harry Trumans seizure of steel mills during the Korean War. Justice Hugo Black wrote the majority opinion, and unequivocally rejected Trumans position. Jackson concurred, but offered up a finely calibrated formula of the relationship between the three branches of government, an equation that is still used today. Obamas admiration for Jackson suggests that his appointees would value the system of checks and balances.
Despite what his opponents may say, Obama isnt likely to turn the Court into a hotbed of radical liberalism. I suspect his judges will look a lot like Stephen Breyer, who is liberal on some social issues but has voted quite frequently with the conservatives when it comes to business cases. Part of this is politicalObama would have a hard time getting a modern-day Robert Jackson through the Senate. But my suspicion is also based partly on Obamas choice of legal advisers and his own legislative record.
The University of Chicago Law School, where Obama taught, is a leader in the law and economics school of thought that has been embraced by corporate America and conservative legal scholars. Obama was unquestionably on the liberal side of the faculty there, but its clear that much of the schools free market bent has rubbed off on him. One of his closest legal advisers is his old University of Chicago colleague Cass Sunstein (now at Harvard Law). Sunstein is one of the more creative legal thinkers in America, and liberal or centrist on most constitutional issues. But he also participated in research on the way juries award punitive damages that was partially paid for by Exxon and used by the company to fight the $5 billion Valdez verdict. And as a senator, Obama voted for the Class Action Fairness Act in 2005, a bill that restricted consumers ability to bring class actions in state court when theyve been defrauded. The U.S. Chamber of Commerce spent close to $100 million getting the bill passed over the objections of consumer groups. Of course, choosing a pro-business nominee will also win Obama points with corporate America, whose support hell need for many of his domestic initiativesand a possible second term. For all these reasons, the Courts pro-business stance may continue in some areas on his watch.
But make no mistake: Barack Obamas nominees may not transform the bench into the second coming of the Warren Court, but they will be, in every sense, significantly different from judges chosen by John McCain. On the one side stands a sophisticated legal thinker who believes that the Court should intervene with great care to protect the sense of fairness and possibility for all citizens that rests at the heart of the American ideal. On the other stands a man who has shown little interest in the law over the course of his career. When he has weighed in, its been to vote for justices who have supported the moneyed over the less fortunate, the powerful over the vulnerable. In many ways, the choice in November is not just between two very different Courts, but two very different countries.
Stephanie Mencimer, a contributing editor of the Washington Monthly, covers legal affairs and domestic policy for Mother Jones and is the author of the book Blocking the Courthouse Door.
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