Monday, November 03, 2008

The Election and the Supreme Court

While wading through some long neglected corners of my Google Reader, I ran across this anti-Obama rant by Holly in Cincinnati on Moderate Voice. Holly was one of the most stridently anti-Obama voices during the primary and apparently is feeling quite PUMA-ish.

Holly will do what she will do, but one item in particular caught my eye. She rejects the argument that a vote for McCain is a vote for a right wing lurch on the Supreme Court, "because SCOTUS appointees historically tend to moderate their views and do the very best job that they can to serve the American people and our judicial system."

That's not an argument. That's denial.

First off, understand what we are talking about. Currently the Court is composed of four predictably conservative judges -- Roberts, Alito, Thomas and Scalia -- and four judges that vote in what passes these days as liberally -- Breyer, Ginsburg, Souter and Stevens. Kennedy is currently the swing vote.

Holly is right that some justices moderate their views. Kennedy is an example. He is by nature a conservative, but unlike the right wing of the court, his conservatism includes respecting stare decisis (the principle that says precedent should be followed) and worries about a drastic change by the Court disrupting society. In addition, he has allowed life experience (for example, getting to know gay clerks and employees, attending international law conferences) to influence his jurisprudence. O'Connor, the previous swing vote, what much the same.

On the other hand, Thomas and Scalia have not moderated their views one iota. For example, in a concurrence in the early Nineties Thomas outlined a view of the Constitution that would render most government regulation of the economy -- including labor, health and environmental legislation -- unconstitutional. Scalia recently declared that the decision that simply allowed Guantanamo detainees to have a day in court would inevitably result in more people dying in terrorist attacks.

Court watchers generally agree that Roberts and Alito are similarly unlikely to moderate their views. Alito for one is still the same jurist who declared a Pennsylvania law requireing a woman to notify her spouse before having an abortion constitutional before the Court struck it down in Casey v. Planned Parenthood.

Not only are some judges disinclined to change their views, the right wing seems to be getting better at making the prediction. The three most recent Republican appointments -- Thomas, Roberts and Alito, are also the most recalcitrantly conservative.

This matters now more than ever. The next President will almost certainly replace two, if not three members of the liberal block. Stevens is 88. Ginsberg is 75 and a cancer survivor. Souter is 69 but reportedly loathes DC. (Scalia at 72 is the only conservative near any possible retirement age.)

So the next President will almost certainly replace a large segement of the liberal bloc. McCain has signaled his intention to nominate justices in the mold of Roberts, Alito, Scalia and Thomas. In point of fact you have at least three different molds there, but the message is clear -- no more compromisers like Kennedy and O'Connor.

If this happens, losing Roe v. Wade will look like a relatively mild consequence. Large swaths of legislation protecting consumers, guaranteeing bargaining rights and safeguarding the environment will be at risk. Individual civil liberties on the other hand will be given a back of the hand. In particular, the righty bloc has little patience for challenges to government religious speech or limits on law enforcement. Whatver moderating effect on all this Kennedy has had would be gone as Scalia would take his place at an increasingly rightward center. (Prof. Will Huhn has a series of posts getting more specific on all this. Click here and scroll down to the Court in the Balance posts.)

For my conservative friends, this is all fine of course. But if you do not want to see a simultaneously ultraconservative and activist court, vote Obama. It's your one chance to shape the Court.


fausto said...

you couldn't be more right. this election is about many things but the supreme court is the big one. it's the main reason i was motivated into volunteering for the obama campaign. first it's roe, then it's birth control and before you know it they'll have my wife wearing a burka.

Anonymous said...

Let's not pretend there's no downside to "religious neutrality."

Dershowitz on Scopes:
"All in all, Bryan did quite well in defining his position, and Darrow came off as something of an anti-religious cynic. The law was on Darrow's side, although it took more than half a century for the Supreme Court to vindicate his position. But the primitive and misapplied evolution taught by John Scopes was neither good science nor good morality. The censorship dictated by Tennessee's antievolution law was not the proper response to the dangers of teaching high school students the kind of racist rubbish contained in the textbook used by Scopes. Religion does indeed have its proper role in constraining the misapplication of science, but not in the classrooms of public schools."

So, who is permitted to safeguard schoolchildren from "racist rubbish?" Parents--regardless of religious motivation--come to my mind.

Then there's the creation of an permanent urban underclass by denying public subsidies to students wishing to attend parochial schools, only recently addressed by Zelman.

And don't forget the changes to Constitutional jurisprudence sought by the CERD shadow report authors.