College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 2008 Section 2: 2008 Election and the Supreme Court Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 2: 2008 Election and the Supreme Court" (2008). Supreme Court Preview. 215. https://scholarship.law.wm.edu/preview/215 Copyright c 2008 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview II. 2008 ELECTION AND THE SUPREME COURT In This Section: "In the Balance" p. 4 1 Stuart Taylor "Some Legal Activists Have Hearts Set on 'True Liberal"' p. 46 Robert Barnes and Kevin Merida "What Will the Outcome of the 2008 Election Mean for the Supreme Court?" p. 49 Edward Lazarus "Constitutional Drift: Obama Veers to the Right, but Does He Need to Take the Constitution With Him?" p. 53 Doug Kendall and Dahlia Lithwick "McCain Newly Assertive on Judicial Views" p. 56 Avi Zenilman and Bed Adler "Over Guantanamo, Justices Come Under Election-Year Spotlight" p. 58 Linda Greenhouse "John McCain and Barack Obama: Two Visions of the Supreme Court" p. 60 David Savage "McCain Assures Conservatives of His Stance on Judges" p. 63 Elisabeth Bumiller "Obama's Constitution" p. 66 Edward Whelan "Activists Mobilize over Shaping Supreme Court" p. 69 Richard Simon and David G. Savage "Dismissed in Boston: Why Won't the Democrats Talk About Judges?" p. 71 Dahlia Lithwick "Fighting over the Court: It's Tough to Make the Supreme Court into an Election Issue" p. 73 William G. Ross 40 "In the Balance" NationalJournal July 26, 2008 Stuart Taylor Jr. Among the starkest contrasts between John gay rights into reverse; discard the McCain and Barack Obama is the dramatic constitutional right to privacy; outlaw all difference in their promised approaches to racial preferences and school integration judicial appointments, especially to the programs; narrow the reach of civil-rights closely divided Supreme Court. protections for women, minorities, and disabled people; bless virtually unrestricted McCain, eager to establish credibility with government funding of religious schools and conservatives, has bashed liberal "activist sponsorship of crosses and other religious judges" who intrude into "policy questions symbols on public property; stop shrinking that should be decided democratically," and and start expanding the death penalty; mow essentially vowed to move the Court sharply down gun control laws; roll back the four to the right in judicial philosophy. decisions since 2004 that have checked Bush administration efforts to expand presidential The presumptive Republican nominee has power in the name of fighting terrorism; and identified Bush-appointed Chief Justice John make it ever harder for consumers and Roberts and Justice Samuel Alito as models. workers to sue businesses. Obama, who voted against both men during The conservative nightmare (and liberal their Senate confirmation hearings, has said dream) is an Obama Court requiring that they and the Court too often side with taxpayers to fund essentially unlimited "the powerful against the powerless" and abortion rights throughout pregnancy; lack "empathy" for ordinary people. The ordering all 50 states to bless gay marriage; presumptive Democratic nominee exudes expanding and perpetuating the use of racial determination to move the Court sharply to preferences far beyond the 25-year phaseout the left if he gets the chance. suggested by the justices five years ago; prohibiting tuition vouchers for religious At a time when the Court is precariously schools; stripping "under God" from the balanced-with four conservatives, four Pledge of Allegiance; banning the death liberals (including the two oldest justices), penalty; striking down the new federal and the ideologically eclectic Anthony wiretap law; expanding judicial oversight of Kennedy-these contrasting approaches military detentions, CIA interrogations, and have provided opposing activists with perhaps other operations worldwide; nightmare visions to rally the Democratic opening the floodgates to big-dollar lawsuits and Republican bases during the presidential against business; eroding property rights; race. and perhaps creating new constitutional rights to physician-assisted suicide, human The liberal nightmare (and conservative cloning, and massive government welfare dream) is McCain replacing one or more and medical care programs. aging liberals with conservatives who proceed to overrule or hollow out Roe v. Chances are that any change in the Court's Wade and other liberal precedents; throw direction will be less extreme than these 41 competing visions suggest, for two big But the two oldest-88-year-old John Paul reasons: A Democratic-controlled Senate Stevens and 75-year-old Ruth Bader might well block McCain from putting Ginsburg-are liberals. So is 68-year-old another strong conservative on the Court, David Souter, who has told friends that he and Obama may never have an opportunity longs to go home to New Hampshire. By to replace one of the Court's current contrast, Kennedy and the four conservatives. conservatives seem reasonable bets to serve another four to eight years or more. That said, the advanced ages of some of the Kennedy and conservative firebrand liberal justices suggest that McCain would Antonin Scalia are 72. Clarence Thomas, the have a better chance of pushing the Court at Court's most conservative member, Alito, least some distance to the right than Obama and Roberts are a relatively frisky 60, 58, would have of pushing it to the left, and 53, respectively. Six of the last eight especially during the next four years. justices to retire or die in office ranged in age from 79 to 85. "The election is really a one-way street when it comes to the Supreme Court," says Given this age distribution, a President Thomas Goldstein, a leading Court McCain would have at least one potentially practitioner and analyst. "Because the balance-tipping vacancy to fill unless the plausible retirements are all on the left, vigorous Stevens smashes the oldest- McCain can hope to move the Court serving-justice record set by Oliver Wendell significantly to the right. But the best case Holmes Jr., who retired at 90. But it's for Obama is to freeze its ideology in place." doubtful that McCain could get the Senate to confirm a nominee with strong conservative Obama and McCain, of course, do not say in credentials, especially to replace one of the so many words that they will name "liberal" liberals or Kennedy. or "conservative" justices. And no such simplistic label can capture the complexity Precisely because of the dramatic impact of any judge's philosophy or voting patterns. that a conservative nominee could have on The four "liberal" justices, for example, are issues including abortion rights and racial too cautious to slake the thirst of many preferences, the pressure from liberal Democrats for a vision of crusading, Court- activists for Senate Democrats to stop any driven social reform. But in politically conservative-by filibustering, if charged cases on which the justices are necessary-would be extremely intense. closely divided, eight of them-all but Kennedy-happen to split 4-4, with So, the battle over any strongly conservative considerable consistency, along lines McCain nominee could be even more corresponding to liberal and conservative ferocious than the one that ended in the policy outcomes. That's why these defeat of conservative Judge Robert Bork in admittedly imperfect labels are the best 1987 by a 58-42 vote. Democrats had a available shorthand for generalizing about 54-46 Senate majority then, and they hope to differing approaches to judging. gain enough seats in this year's elections to have a comparable majority in 2009, even if Battles Ahead? McCain wins the presidency. All nine justices appear to be in good health. President Reagan cared more about moving 42 the Court to the right than does McCain, smeared as monsters ever since Sen. Edward who showed little interest in the courts until Kennedy, D-Mass., declared: "Robert he needed the judicial-appointment issue to Bork's America is a land in which women woo conservatives who have never trusted would be forced into back-alley abortions, him. But even Reagan was forced to turn to blacks would sit at segregated lunch a more moderate, less predictable figure counters, [and] rogue police could break after Bork's defeat. He chose Kennedy, who down citizens' doors in midnight raids." has alternately sided with and infuriated Some outstanding potential McCain conservatives. nominees don't want to subject themselves to the ordeal that the confirmation process McCain would also have to wrestle with the has become. fact that potential nominees whom conservatives find pleasing would also be Miguel Estrada, a brilliant, solidly good bets to strike down part or all of conservative appellate lawyer who soared to McCain's signature legislative achievement: the top of his Harvard Law School class the 2002 McCain-Feingold campaign after emigrating from Honduras as a finance law. teenager, was seen by admirers as the perfect prospect to be the first Hispanic- Adding to the problems the Republican American justice. But when he was might have in finding a confirmable nominated in 2001 for a federal Appeals conservative is the strong political pressure Court, he was trashed by liberal groups and that he (or Obama) will feel to name a ultimately blocked by a Democratic woman. At a time when nearly half of the filibuster. nation's law students are women, the Court's 8-1 male-female ratio strikes many In 2005, Estrada flatly refused when the people as offensive, or at best odd. There White House pressed him to consider taking will also be pressure to put a Hispanic- the nomination to succeed Justice Sandra American or another African-American on Day O'Connor, according to Supreme the Court.