Robert Barnes’s review of the Court’s term in yesterday’s Washington Post correctly observes that the Court “is sharply divided ideologically on some of the most fundamental constitutional questions, and the coming presidential election will determine its future path.” As Barnes puts it, an Obama victory “would probably mean preserving the uneasy but roughly balanced status quo since the justices who are considered most likely to retire are liberal,” whereas a McCain win “could mean a fundamental shift to a consistently conservative majority ready to take on past court rulings on abortion rights, affirmative action and other issues important to the right.”
I have no dispute with this general political narrative, but would flesh out some additional details that would suggest a different cast to the rhetoric:
1. The current Court is markedly to the Left of the American public. Obama’s rush to criticize the Court’s ruling in Kennedy v. Louisiana (no death penalty for rape of child) and his flip-flop on Second Amendment rights illustrate this, as does the public’s disapproval (by a margin of 61-34 in this Washington Post poll, question 13) of the Court’s conferral of constitutional habeas rights on foreign terrorists at Guantanamo (in Boumediene v. Bush). It’s also quite possible that the Court, as currently composed, would invent a constitutional right to same-sex marriage. So there’s no reason to think that an informed public would want to preserve the status quo.
2. Even though it’s probable that the first justices to leave the Court will be from among the four steadfast liberals, it’s far from certain. Moreover, if Obama wins in 2008, he’s a strong favorite to win re-election in 2012, in which case it’s a fair bet that he’d be able to replace Justice Scalia and Justice Kennedy. The resulting Court would have six votes for all sorts of constitutional mayhem. As the National Journal’s Stuart Taylor has put it, justices appointed by a President Obama would present a real threat (in Taylor’s words) of further “displacing democratic choices with made-up constitutional law” and of “strangulation” of representative government:
Based on the wish lists published by liberal judges and law professors, justices who fit Obama’s description [of his model appointee] might well invent federal constitutional rights not only to gay marriage but also to Medicaid abortions, physician-assisted suicide, human cloning, and perhaps free medical care, food, and housing for poor people; strike down the death penalty (as Stevens recently advocated) and laws making English the official language; ban publicly funded vouchers for poor kids to attend parochial schools; bless ever-more-aggressive use of racial and gender preferences; and more.
For these reasons (as I’ve recently argued here and here), American citizens, with a fuller picture of what is at stake in the presidential election, can be expected to prefer that John McCain make the next Supreme Court appointments.