What’s At Stake: Supreme Court

National Journal

The federal judiciary will become markedly more conservative if McCain wins and markedly more liberal if Obama does. This shift will affect the outcomes of cases involving a host of ideologically charged issues, including abortion; gay rights; affirmative action; the death penalty; the rights of suspected terrorists; gun control; property rights; the environment; regulation; and big-dollar lawsuits against business.

To woo conservatives who have long mistrusted him, McCain has bashed "activist judges" who "legislate from the bench." He has cited Bush-appointed Chief Justice John Roberts and Justice Samuel Alito as his models of restraint.

Obama, who taught constitutional law at the University of Chicago, voted against the confirmations of Roberts and Alito, saying that they too often side with "the powerful against the powerless" and lack "empathy" for ordinary people.

The replacement of a retiring liberal justice by a conservative McCain appointee, or of a conservative by a liberal Obama appointee, could give the Supreme Court an ideologically solid majority for the first time in decades and gradually make a dramatic impact on the course of the law. That’s because the current Court is so closely — and deeply — divided. It has four liberals, four conservatives, and one justice (Anthony Kennedy) who swings depending on the issue.

The influence of the next president’s appointees on the judiciary will be profound, if less visible, even in the unlikely event that he has no opportunity to replace any of the Supreme Court’s current justices. The rulings of the nearly 100 judges appointed over the next four years to fill vacancies on lower federal courts will be final in the vast majority of cases because the Supreme Court will review only a minuscule percentage of them. And recent history shows that Republican-appointed judges tend to be conservative and Democratic appointees tend to be liberal.

How dramatically the judiciary will change depends on two variables beyond any president’s control: Which, if any, justices will retire or die over the next four to eight years? And will the next president be able to push ideologically controversial nominees through the Senate?

McCain would be more likely to tip the Supreme Court’s balance to the right than Obama would be to tip it to the left. That’s because the three justices deemed most likely to retire are liberal: John Paul Stevens, Ruth Bader Ginsburg, and David Souter. Stevens, 88, and Ginsburg, 75, are the oldest justices. Souter is only 69, but he has told friends that he longs to retire to his home in New Hampshire.

On the other hand, it is doubtful whether McCain could get a strong conservative confirmed by a Democratic-controlled Senate. If McCain were to surmount that obstacle, the Court could soon be outlawing racial preferences, allowing more restrictions on abortion, and sweeping away gun control laws. It could also be making it harder for women, minorities, and the elderly to win discrimination lawsuits and for consumers to win personal-injury lawsuits, while clearing the way for greater use of the death penalty and possibly even overruling Roe v. Wade.

Obama’s chance of replacing a conservative with a liberal is limited by the fact that the oldest conservative justice, Antonin Scalia, is only 72, as is Kennedy. The next oldest conservative is 60-year-old Clarence Thomas.

But if a conservative (or Kennedy) does step down, Obama would have a good chance of getting a Democratic Senate to confirm a liberal successor. And a Court with one more liberal could soon be ordering federal funding for abortion; encouraging more-aggressive use of racial and gender preferences; overturning the "don’t ask, don’t tell" law on gays in the military; expanding judicial oversight of foreign wars; barring all forms of state aid to religious schools; banning the Pledge of Allegiance from public schools unless "under God" is stripped out; swinging the doors open to more lawsuits; declaring a constitutional right to assisted suicide; and perhaps expanding welfare rights.