NOVEMBER 5, 2008
During every presidential campaign for the last two decades, liberals have predicted an apocalypse in the Supreme Court. In their dire visions, as many as four justices are always about to retire, meaning that a Republican victory would turn the court radically to the right and lead to the certain overturning of Roe v. Wade.
In each of the past three elections, of course, these hyperbolic predictions have turned out to be wrong. Since 1996, Roe has been supported by a comfortable 6-3 majority, and the Court, controlled by two relatively moderate swing justices, Sandra Day O'Connor and now Anthony Kennedy, has remained fairly centrist. All of this had led some Court-watchers, including me, to conclude that the stakes for the Court in most presidential elections are less dire than many liberals fear.
Not this time. This year, for the first time since the New Deal era, a single election really does have the power to transform the Court--at the very moment that voters, rightly concerned about the tanking economy and the war in Iraq, are looking the other way. Given the fact that the older justices are liberal rather than conservative--and that the oldest, John Paul Stevens, is 88--it's hard to deny that nominations by John McCain would change the Court far more dramatically than those by Barack Obama. An Obama victory would maintain the current balance of the Court, while a McCain Court could create a solid conservative majority.
What's at stake is not only Roe v. Wade, but issues directly tied to the current concerns of the public: among them, Congress's power to regulate the economy as well as limits on the president's power to act unilaterally in the war on terrorism. Although McCain claims to favor justices who will defer to the political branches, the most likely Republican nominees are hardly consistent advocates of judicial deference. Voters who are hoping McCain will nominate relatively moderate judicial mavericks should think again.
It's true that certain kinds of conservative nominees would change the Court more dramatically than others. Activist conservatives, who yearn for the resurrection of what they call the Constitution in Exile, would be far more likely to challenge Congress and to strike down a range of federal regulations, from health care and the environment to the economic bailout. By contrast, deferential conservatives, who believe in judicial minimalism across the board, would generally uphold laws passed by Congress as well as the states.
Many prominent conservatives are confident that McCain, who has never cared much about the judiciary, would placate his conservative base by appointing activist movement conservatives. "It's a standard move in Republican coalition politics for someone who might not be seen as a movement conservative--like John McCain and, initially, George W. Bush--to win the support of the conservative base by putting legal conservatives in charge of picking judges," says John Yoo, former deputy assistant attorney general in the Bush administration. (The head of McCain's judicial advisory committee, for instance, is Ted Olson, the former Bush solicitor general who argued and won Bush v. Gore.)
As examples of the kinds of justices McCain might appoint, Yoo mentions Janice Rogers Brown, the libertarian African American judge on the federal appellate court in Washington, D.C., whose extreme devotion to property rights makes her one of the most prominent advocates of the Constitution in Exile. Another candidate Yoo mentions is Edith Jones, an appellate judge in Texas. Jones is a blistering skeptic of federal power who dissented from a decision applying the Endangered Species Act to protect a rare species of underground bug. When I was in law school, there was a story, no doubt apocryphal, that Jones had the following message on her answering machine: "If you're calling for a clerkship interview, please leave a message; if you're calling for a death penalty stay, DENIED!"
Activist nominees like Brown and Jones would, of course, be strenuously resisted by a Democratic Senate, especially one with a filibuster-proof majority, but, after rejecting one or two sacrificial McCain nominees, the Senate would feel increasing political pressure to confirm a stealth nominee without an extensive paper trial. Stealth nominees tend to be movement conservatives, rather than principled devotees of judicial deference. And Senate Democrats, focused on Roe v. Wade, are unlikely to distinguish carefully between activist and deferential conservatives when it comes to congressional power.
So let's assume that McCain gets to appoint at least one activist conservative to the bench. How would America and the law be transformed? The most significant effect of a McCain Court could come in areas pitting the Court against federal regulations passed by Congress. Before the crash of 2008, the previous two most serious depressions in U.S. history--in the late nineteenth and early twentieth centuries--triggered populist economic regulations by Congress and the states to protect citizens from the excesses of industrial capitalism. In both eras, conservative Supreme Court majorities struck down those regulations--from minimum-wage laws to parts of the New Deal--as an affront to property rights and limits on federal power. This triggered a political backlash from Americans convinced that the decisions were bad for the country.
The greatest danger posed by a McCain Court is that it might revive those now-discredited ideas. Some conservatives may challenge future regulations that Congress passes in the wake of the bailout as a violation of constitutional doctrines involving the separation of powers and prohibitions on broad delegations of congressional authority to the executive. In the current Roberts Court, these arguments are unlikely to persuade a majority of justices, but the addition of activist conservatives might change things. If a McCain Court struck down any of the regulations related to the economic crisis, it would produce not only economic chaos, but the first constitutional conflict with a Democratic Congress since the New Deal era.
McCain judges might also undermine a Democratic Congress in other ways--dismantling environmental and civil justice laws by judicial fiat. In the Massachusetts v. EPA case in 2007, in a 5-4 majority opinion written by Justice Stevens, the Court held that the Bush Environmental Protection Agency couldn't sidestep its congressionally mandated obligation to regulate pollutants, such as carbon dioxide, that cause global warming unless it could offer better scientific evidence against the connection between greenhouse-gas emissions and climate change. In a Court with appointees from President McCain, cases like this would come out the other way, allowing administrative agencies to ignore their regulatory obligations. Continuing the pattern established in the Exxon Valdez decision last year, a property-rights-minded McCain court might also take it on itself to impose, by judicial fiat, a laissez-faire agenda that has no national constituency--including measures such as tort reform or limitations on punitive damages. And there's little doubt that a McCain Court would further chip away at--if not entirely gut--McCain's own signature achievement in the Senate: campaign finance reform.
Although McCain nominees might challenge Congress, they would likely be far more deferential to the president. Like Roberts and Alito, most conservative judges favor broad deference to presidential powers in wartime, and, with the arrival of one more conservative justice, the recent closely divided cases that questioned President Bush's military tribunals--including the Hamdan and Boumediene cases, which McCain has denounced--might well be overturned. "McCain was one of the people who worked on the Military Commissions Act of 2006, which the Court struck down, so you would expect him to appoint justices who agree with his constitutional view of broad presidential powers," says Yoo. Since Anthony Kennedy has been the only vote standing between the Bush administration and carte blanche in the war on terrorism, a pro-presidential powers Court could mean that McCain would be much freer to surveil, detain, or interrogate suspected terrorists without judicial oversight.
Not all conservatives agree that either McCain or his judicial nominees would go as far as Bush in embracing a unilateralist view of executive authority. They point out that Antonin Scalia, for instance, has sometimes taken a more libertarian view of limits on the president's power than Clarence Thomas. Still, even if some McCain justices balked at endorsing the indefinite detention of American citizens, as Scalia has done, they are unlikely to be as confident in challenging the president and Congress in wartime as Kennedy. That could have dramatic consequences in cases that are now working their way up to the Court: Over the next few years, the Court may well hear a series of challenges to Bush terrorism polices, ranging from the Guantanamo trials to warrantless wiretapping to challenges to the use of predator drones to attack targets where civilians are killed. With the addition of a McCain-appointed justice or two, these cases would likely be decided in favor of the president.
At the same time that McCain judges might undermine Congress and favor the president, they would continue to expand the Roberts Court's suspicion of "regulation by litigation." Plaintiffs have filed more than 600 suits related to the subprime mortgage crisis in the past two years, and many of these are already faltering under the pro-corporate doctrines embraced by the Rehnquist and Roberts courts. In recent years, the Court has made it harder for lawsuits by investors to succeed, requiring specific allegations that corporate defendants knowingly deceived the market; another decision last January made it extremely difficult to sue accountants, lawyers, and other corporate advisers for securities fraud. The next round of suits may be against the bond ratings agencies that downplayed the risk of shaky mortgages, but those arguments are already being resisted on the grounds that the opinions of the rating agencies are a form of speech protected by the First Amendment. Then there will be the Monday morning quarterbacking of the banks that sold devalued commercial paper to the federal government too cheaply. Although the McCain Supreme Court would not be at the center of the many shareholder, disclosure, and fair-value-accounting suits triggered by the mortgage crisis, it could make it even harder for these suits to succeed at the very moment the country is demanding legal accountability.
If many conservatives are inconsistent in their devotion to judicial deference to the federal government--challenging Congress while deferring to the president--they are similarly inconsistent when it comes to deference to state legislators. Broadly, many conservatives want to second-guess the states when they pass progressive regulations--involving affirmative action, economic redevelopment, and gun control--while deferring to the states when they pass regulations favored by social conservatives involving religion and abortion. Which brings us to Roe v. Wade. This year, for the first time since the 1992 election, Roe really is hanging by a 5-4 thread. Would the appointment of one more conservative justice lead it to be overturned? During the confirmation hearings of John Roberts and Samuel Alito, I had resisted this conclusion, taking seriously their paeans to the importance of precedent. Perhaps they would chip away at Roe incrementally, I thought, without overturning it cleanly.
But this scenario may be too optimistic. When I asked Justice Stevens in 2007 whether he thought Roe would survive in his lifetime, he said: "Well, it's up to Justice Kennedy. I don't know about the two new justices"--Roberts and Alito--"but I kind of assume it may well be up to him." Stevens presumably knows more about the inclinations of Roberts and Alito than the rest of us. Also, the need to overturn Roe on principle is such an article of faith in conservative legal circles that it's not clear that Roberts and Alito would balk if presented with the opportunity by a solid conservative majority.
After overturning Roe, the most important social agenda item on many conservatives' Supreme Court wish list is banning affirmative action in nearly all circumstances. At the moment, the Court takes a Goldilocks approach to racial preferences: some but not too much. By 5-4 votes, it has allowed tailored race preferences in universities and law schools while restricting them in public schools, public contracting, and public employment. It also has upheld federal voting laws that sometimes require states to take race into account in constructing voting districts to protect the rights of minorities. One more conservative justice might lead to the overturning of the Grutter case, which upheld law school affirmative action by a 5-4 vote in 2003. If the McCain Court declared that the Constitution is always color-blind, the nuanced use of race would go out the window, and the results would be extraordinarily activist: Justice Stephen Breyer has counted more than 50 federal laws and 100 state laws that contain racial classifications, all of which might be in jeopardy.
Finally, there are two other perennial battlegrounds in the culture wars: God and guns. At the moment, a bare majority of five justices, led by Kennedy, believe that the Constitution forbids graduation prayers in public schools. A McCain Court might overturn Lee v. Weisman, which banned graduation prayers, and might extend the cases in which the Rehnquist Court was willing to tolerate ceremonial endorsements of religion in the public square, from the Ten Commandments to holiday creches. Broadly, a McCain Court would be poised to reject the nuanced position of religious neutrality--which holds that government must treat religious and secular institutions on equal terms--and embrace a position of religious supremacy, which allows government to support religion, as long as it doesn't favor one faith over another. At the same time, the Heller decision, striking down D.C.'s gun ban, might well be extended to strike down far less draconian bans passed by various states.
Some conservative defenders of judicial deference say they're not eager for a McCain Court to be activist as I've suggested it might be--declaring war on Congress, for example, and striking down affirmative action and regulations ranging from economic stability to gun control. "With the specific exception of Roe, we're more interested in preventing future liberal incursions than in undoing past ones, much less in achieving a conservative counterrevolution," says Ed Whelan of the Ethics and Public Policy Center. "If you could give me a grand deal that was binding where the Court would overturn Roe and not do all the bad things we fear from an Obama Court--including creating rights to gay marriage and cloning, striking down the death penalty, and stripping 'under God' from the Pledge of Allegiance--I would happily give up all the supposed gains that the left might fear from a conservative Court."
There are, in fact, principled conservative devotees of judicial deference who could make good justices and avoid the liberal nightmare scenarios I've described. For example, Judge J. Harvie Wilkinson III, who was on President Bush's Supreme Court shortlist, is a thoughtful Burkean conservative who recently wrote a devastating critique of Justice Scalia's majority opinion in the Heller gun case. Similarly, Michael McConnell of the U.S. Court of Appeals for the Tenth Circuit, a respected former law professor at the University of Chicago, is the leading conservative advocate of judicial deference to congressional power.
It seems unlikely, however, that McCain's first nominees would be deferential conservatives. Judicial deference doesn't have a broad constituency in either party, and McCain himself doesn't seem committed to it. In a speech at Wake Forest University in May, McCain included the usual conservative boilerplate attacks against "judicial activism." But his definition of activism was revealing. Like Sarah Palin, he singled out for criticism the Kelo case, which actually deferred to the choices of democratic majorities. In Kelo, the Court upheld the City of New London's decision to seize property for economic redevelopment--rejecting the property rights claims brought by libertarian opponents and other devotees of the Constitution in Exile. If Kelo is McCain's litmus test, he would be more likely to choose activist nominees like Janice Rogers Brown than restrained ones like Wilkinson or McConnell.
Although liberals have often cried wolf about the impact of presidential elections on the Supreme Court, sometimes the stakes have been just as high as liberals feared--think of the election of 1936, when Roosevelt's landslide reelection allowed him to appoint eight justices to replace the conservative majority that had struck down the New Deal. This year, liberals are in a perilous situation, where a conservative president could create a conservative Supreme Court majority for decades to come. In other words, those who have long been too concerned about the future of the Supreme Court finally have reason to worry.
Jeffrey Rosen is the Legal Affairs Editor for The New Republic.
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This article originally ran in the November 5, 2008, issue of the magazine.