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Iraq, Iran, Afghanistan, foreclosures and $4-a-gallon gas are
front-burner issues in the presidential campaign. But the biggest long-range
impact of the November election may be on none of these issues. It may be on the U.S. Supreme Court where a McCain victory could mean a
sharp right-turn.
A year ago, the conventional wisdom was that the U.S.
Supreme Court had veered in a conservative direction. One court expert even
spoke about Supreme Court Inc. because business interests had won so many cases
during the 2006-7 court term.
A year later, those prognostications look overstated. The more liberal to
moderate justices won important victories this year as the court rejected
President George W. Bush on Guantanamo and invalidated Louisiana's death penalty
for child rapists. In addition, employees won about as often as employers this
term with victims of discrimination coming out on top in a string of
decisions. Criminal defendants also did relatively well as the court gave
justices discretion to reduce sentences in crack cases.
Linda
Greenhouse, the respected Supreme Court reporter for The New York Times was one
of those who thought a year ago that the court had moved so far to the right
that it had lost touch with the American people. This month, as Greenhouse took leave from the
beat she covered so well for three decades, she acknowledged that she had
overstated the situation.
But the court could take the direction that Greenhouse once predicted if Sen. John McCain is elected president and appoints the kind of justices he says he would - those like Chief Justice John Roberts, Justice Samuel Alito and McCain's long-time friend, the late Chief Justice William H. Rehnquist.
The reason is that the four most predictable conservative votes on the current court are young men unlikely to leave any time soon. The three most likely retirements are three of the oldest and most liberal justices - John Paul Stevens, 88, Ruth Bader Ginsburg, 75, and David H. Souter, 68.
In a story on the future of the court, long-time court reporter Stuart Taylor quotes Supreme Court practitioner Thomas Goldstein saying, "the election is really a one-way street when it comes to the Supreme
Court. Because the plausible retirements are all on the left, McCain
can hope to move the Court significantly to the right. But the best
case for Obama is to freeze its ideology in place."
If the court tipped a vote or two to the right, the justices could read Roe v. Wade out of the Constitution, allow more religion into the public square and accept President Bush's vision of robust presidential power in the war on terrorism. It also could reverse itself by upholding laws against homosexual sex and restricting the right of privacy. And, it would be less likely to question the application of the death penalty, as the current court has in blocking its use against juveniles and mentally retarded people.
It is simplistic to say that all of the conservatives - or all of the liberals - are cut of the same cloth. Chief Justice Roberts has spoken about his desire to rally larger court majorities around narrower legal rulings. In the term just ended, the chief justice appeared to make some progress toward his goal. This was particularly true in two important cases upholding legislative
authority, one validating Indiana's photo i.d. law for voters and the other Kentucky's
lethal injection system.
In each of those cases, the chief justice, Justice Alito and Justice
Anthony Kennedy took a more moderate legal approach than their more conservative
colleagues, Justices Antonin Scalia and Clarence Thomas. As a result, the
chief justice was able to win the support of one or two moderate justices,
making for a less divisive and less ideological ruling.
Still, this is Justice Kennedy's court when it comes to the most controversial
cases. In this way, the current court is much like the court of the past
two or three decades. Justice Kennedy is to the Roberts court what Sandra
Day O'Connor was to the Rehnquist court and Lewis F. Powell Jr. was to the
Burger court. In the most controversial cases, these justices often made
all the the difference.
Justice Kennedy was in the majority in every important 5-4 decision this
term. On the liberal side, he wrote the Guantanamo and child rape
decisions. On the conservative side, he joined the court's decision
recognizing that people have an individual Second Amendment right to keep a gun
in the home for protection.
The gun case was the most important of the
term. This is the first time that the court has recognized an individual
Second Amendment right. During most of the 20th Century, courts viewed the
Second Amendment as protecting a collective right that related to arming state
militias.
The decision will open the way to a host of litigation. The NRA already
has filed suits against four northern Illinois cities that had handgun bans
like the one struck down in the District of Columbia. The cities are
Chicago, Evanston, Oak Park and Morton Grove.
The first issue that the courts will face is whether the Second Amendment
applies to the states. Most, but not all of the protections of the Bill
of Rights were applied to the states in the 20th Century. A 19th Century
Illinois case ruled that the Second Amendment did not apply to the states, but 20th Century developments probably have overtaken it.
In addition, the court will have to decide how much government regulation to
permit. Justice Scalia made clear that laws against carrying a concealed gun would still be constitutional as would laws in states like Missouri that ban guns from many public places.
Once again, Justice Kennedy will hold the balance of power in deciding what regulations to approve. Although Justice Kennedy was a silent vote for the majority in the gun case, many court analysts thought that Justice Scalia's opinion for the majority had been moderated to keep Kennedy on board.
The second most important decision of the term was Justice Kennedy's opinion granting habeas corpus to prisoners at Guantanamo. This is the third time in four years that the court has rejected President Bush's assertions of extraordinary power in terrorism cases.
No court in the history of the nation has gone so far to check the president's assertion of commander-in-chief authority during a war. The closest that a past court came was when it rejected President Harry Truman's attempt to seize still mills during the Korean War.
This is one of the paradoxes about today's court. On the one hand, it is deeply conservative. Seven of the nine justices were appointed by Republicans and even the justice in the middle, Justice Kennedy, has strong conservative credential. On the other hand, the Supreme Court has never before extended habeas corpus rights to people captured on the battlefield and held outside the U.S.
So far McCain has emphasized appointing justices who are not activists while Obama says he will look for justices who have "empathy" for ordinary people's problems.
Once justices are appointed, though, they often surprise those who put them on the court. Souter is a perfect example.
McCain could find that he has this problem. The very justices he says are the kind he would appoint have lined up the past two terms to strike down his handwork in the MCain-Feingold campaign finance law.
(See Stuart Taylor's piece for the names of some of the justices thought to top the McCain and Obama lists.)
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