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The Supreme Court may be main event

The Supreme Court may be main event

Posted: Friday, October 10, 2008 8:19 pm
By: Douglas Cohn and Eleanor Clift


By Douglas Cohn 

and Eleanor Clift

WASHINGTON — There wasn’t a single question in either of the first two presidential debates about the Supreme Court. Maybe that’s because we know what each of the candidates will say. Sen. John McCain, R-Ariz., promises to nominate judges in the tradition of the two most recent conservative appointees, John Roberts and Samuel Alito. Sen. Barack Obama, D-Ill., looks to the past for his ideal role model, naming Earl Warren, who as Chief Justice led the Court to its unanimous Brown vs. Board of Education decision in 1954 that outlawed legally segregated schools.

The next president could have three seats to fill, a critical mass on the nine-person Court. Justice John Paul Stevens, who at 88 is the oldest member of the Court, is also its most liberal member. He is the likeliest retirement within the next four years regardless of who wins the election. Justice Ruth Bader Ginsberg at 75 is the next oldest justice. Appointed by President Clinton and part of the Court’s liberal wing, she could comfortably resign if Obama wins the election; if it’s a McCain administration, assuming her health holds up, she would be tempted to stay the duration.

Justice David Souter has reportedly told friends he’s homesick for his New Hampshire cabin in the woods. Only 69, young by Supreme Court standards, Souter has become a mainstay of the progressive bloc on the Court. The prospect of his retirement terrifies liberals just as it invigorates conservatives, who feel Souter betrayed them after former President Bush appointed him to the lifetime seat. On the moderate-to-liberal side of the Court, only Justice Stephen Breyer has not generated rumors about possible retirement.

The Court is evenly divided between four liberals and four conservatives with Justice Anthony Kennedy holding the only vote that doesn’t fall reliably on either side. While three of the four liberals are potential retirees, the four conservatives look like they’re dug in for the long haul (Roberts, Alito, Antonin Scalia and Clarence Thomas).

An election that started out as a referendum on the Iraq War is now a crash course on the economy, with the Supreme Court getting little attention. Yet 50 years from now, the makeup of the Court will have more influence on American society and the way we live than the turmoil in the economy or whether the troops draw down in Iraq over 16 months, as Obama proposes, or longer, as McCain suggests. Recessions come and go; wars come to an end, but Supreme Court decisions endure well beyond the term of any president.

The current Court is notable for its high number of 5-4 decisions and its willingness to blur the line between church and state. The retirement of Justice Sandra Day O’Connor in 2006 shifted the balance to the right on issues related to abortion, religion and school desegregation. It strains credulity that the Court could find voluntary plans to desegregate urban schools unconstitutional, ignoring social good in the service of what conservatives call a strict constructionist philosophy.

Roe v Wade, the Court’s 1973 decision that legalized abortion, is notably under assault. Given the likelihood of an increased Democratic majority in the Senate, if McCain becomes president, he would have difficulty confirming a justice who might join the conservative bloc in voting down Roe. But a nominee willing to chip away at the landmark decision is well within the realm of possibility.

The Supreme Court is typically an issue only for activists, and particularly activists on the right, who in recent years have come to rely on the Court to move the country in a conservative direction on social issues with decisions that could never gain a majority in Congress. Getting the broader public to see the far-reaching impact that one, two or even three appointments could have is a subtext in this election, but it’s really the main event.

Distributed by U.S. News Syndicate, Inc.
Published in The Messenger 10.10.08

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