SCOTUS…sidelined?
It seems that a lot of attention has been diverted from the normally red-hot topic of Supreme Court nominations…well, that will change if USA Today and the New York Times have anything to say about it. And they do – as both their lead editorials deal with the implications that either a Obama or McCain Administration might have on the likely appointments that would be made to the High Court in the next few years.
New York Times: “The Supreme Court’s New Term“
The election’s outcome is likely to have an enormous impact on questions like the right to abortion, the wall between church and state, and the power of the president to detain Americans. Since several justices could depart in the next four years, this could be the most important election for the court in many decades.
USA Today: “Election could decide fate of Roe, other big court issues“
A McCain victory, moreover, would not necessarily guarantee a reversal of Roe. For one thing, Democrats are expected to strengthen their majority in the Senate in November, making it harder to confirm any court nominee who might side with the justices who have been hostile to Roe. For another, given their views on respecting previous decisions, it is not certain that Roberts and Alito would vote to reverse Roe outright. Nor would an Obama win guarantee Roe would be protected. Many justices have departed from the views of the presidents who appointed them. Nevertheless, there’s little doubt what either candidate would try to do.
Further, the next president could produce substantial change in established law in a number of areas beyond abortion. The court has divided 5-4 on cases involving school desegregation, gun control, the death penalty, the government’s power to combat global warming and the rights of prisoners held at Guantanamo Bay, Cuba. Other one-vote decisions set new precedents in limiting punitive damages against miscreant corporations; shielding bankers, accountants and lawyers from disgruntled investors; and narrowing Congress’ authority to regulate money in politics.
The retirement of Sandra Day O’Connor in 2006 and her replacement by Samuel Alito almost certainly shifted the balance of the court in disputes since then over abortion, religion and school desegregation, among other issues.
The types of justices McCain and Obama say they’d select offer a clear choice, and the issue merits more discussion during the remaining two presidential debates — particularly if the nominees can be nudged past sloganeering and into substance.
Given the scale of the problems the United States faces at home and abroad, the effect of the Nov. 4 election stands to be historic. Most immediately, the effects will be felt in the economy and in the wars in Iraq and Afghanistan. But the next president’s choices for the U.S. Supreme Court has the potential to influence law and social behavior for a generation or more.
The Washington Post also has a piece on this today:
There were not many conspicuous tributes to the legacy of President Bush at last month’s Republican National Convention, but there was at least one.
It was a campaign button with the words “Thanks, W” across the top and photos of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. beneath the letters.
Conservative legal activists view the two men as remarkable successes in Bush’s quest to move the court to the right, and that is part of the reason that, as the court begins its work anew today, public attention is focused less on the cases at hand than on the court’s future.
I should have mentioned this issue of the Supreme Court in a conversation I had over the weekend with a friend who is considering not voting in this year’s election.
