The New Republic

Whether or not the Supreme Court decides the presidential election,
the election will decide the future of the Supreme Court. And the
first vacancy, which could come sooner rather than later, as Chief
Justice William Rehnquist's surgery last week reminds us, is likely
to provoke a partisan explosion that will make the battle over
Robert Bork look like child's play. As Election Day approaches,
liberal and conservative interest groups are trying to rally their
bases with the same alarmist slogans they have been using for the
past 30 years. If George W. Bush wins, "a 'perfect storm' of likely
Supreme Court vacancies and potential cases heading toward the High
Court could well lead to the overturning of Roe v. Wade," warns
naral Pro-Choice America. If John Kerry wins, "Catholics should be
aware that a Kerry-appointed U.S. Supreme Court could threaten the
core values of their faith," counters George Marlin, author of The
American Catholic Voter.In fact, what is at stake in the election is not the future of Roe
v. Wade, school prayer, or any of the culture-war issues that have
inflamed the country since the 1970s. The left may be hesitant to
acknowledge it, but the Rehnquist Court has largely sided with
liberals rather than conservatives in these cultural battles. It
has done so because liberals have won in the court of public
opinion. And the chance of either Bush or Kerry getting through the
Senate justices who want to revisit those well-settled precedents is
low.

Instead, the election will determine the future of the Supreme Court
in unexpected areas that remain, for the moment, less visible than
abortion, but no less important. If Bush wins, his aides seem
determined to select justices who would resurrect what they call
"the Constitution in Exile," reimposing meaningful limits on
federal power that could strike at the core of the regulatory state
for the first time since the New Deal. These justices could change
the shape of laws governing the environment, workplace health and
safety, anti-discrimination, and civil rights, making it difficult
for the federal government to address problems for which the public
demands a national response. And, if Kerry wins, the justices he
appoints are more likely to turn to international law to define the
meaning of U.S. constitutional guarantees, such as due process,
cruel and unusual punishment, and equal protection. If taken too
far, the new internationalism could ignite an entirely new culture
war for the twenty-first century. In other words, there are dangers
for the Court regardless of who wins the election, just not the
ones that both sides are predicting.

In every election since 1980, Roe v. Wade has dominated questions
about the Supreme Court. But, on the Court today, there are six
justices who support the core of Roe (Justice Anthony Kennedy
dissented from the Court's 5-4 decision in 2000 to strike down bans
on late-term abortions but still supports the right to earlier-term
abortions). And, in order for Roe to be overturned, two of these
justices would have to retire and be replaced by committed
opponents. Even in the unlikely event that two such justices could
be confirmed, the public overwhelmingly supports protections for
early-term abortions. And conventional wisdom among political
scientists, beginning with Robert Dahl in the 1950s and continuing
until today, is that the Court does indeed follow the election
returns and rarely challenges deeply felt currents in public
opinion. This is why the Court, under the leadership of the swing
justices, Sandra Day O'Connor and Kennedy, has extended the most
popular liberal activist decisions of the Warren era while also
endorsing conservative judicial activism as public support for the
welfare state wanes.

The Bush White House is well aware of this, which is part of the
reason overturning Roe is no longer at the top of the GOP agenda.
Bush administration officials who have participated in
conversations about judicial nominations during the past four years
say that overruling Roe v. Wade no longer comes up as a priority in
discussions about candidates. This de-emphasis of Roe also reflects
the widespread understanding that Senate Democrats would filibuster
any openly anti-Roe candidates, making it politically impossible,
under the current ground rules, for Bush to get them confirmed.

Of course, if Bush is reelected and the Senate remains Republican,
it is conceivable that GOP lawmakers might try to change the Senate
rules so that filibusters could be ended by a simple majority of 51
votes, rather than the 60 votes currently required. For the past
year, Senate Republicans, frustrated with Democratic filibusters of
controversial Bush nominees, have discussed this so-called "nuclear
option." The rules could be changed either through a formal vote of
the Rules Committee, which would also require 67 votes in the full
Senate, or by a parliamentary maneuver involving a ruling from the
vice president, sitting as head of the Senate, which would only
require a simple majority. But, while some conservatives might
support this tactic to push through a hard-right Supreme Court
nominee, moderate Republicans like John McCain have opposed it on
the grounds that it would make the Senate more like the House. And
Democrats could retaliate by going nuclear themselves, demanding
roll-call votes for every minute procedural issue and bringing the
Senate to a halt. Since neither party has a strong political
incentive to see Roe overturned (agitation for doing so comes from
interest groups on the extreme right, not from the Bush White
House, which understands that overturning Roe would lead women to
defect from the GOP en masse), it's hard to imagine that the desire
to confirm anti-Roe judges would lead a majority of Senate
Republicans to cut their own throats.

Instead of revisiting Roe v. Wade, a second Bush administration is
more likely to focus on judges who will restore the Constitution in
Exile. The phrase comes from a 1995 article by Douglas Ginsburg, a
federal appeals court judge in Washington, D.C., whom Ronald Reagan
unsuccessfully nominated to the Supreme Court after the Senate
rejected Bork. Condemning American judges for being too deferential
to the regulatory state, he announced, "For sixty years the
nondelegation doctrine has existed only as part of the Constitution
in Exile," along with other "ancient exiles" repudiated after the
New Deal.

The legal doctrines to which Ginsburg referred were largely
abandoned in the 1930s to allow the federal government broad
discretion to regulate health, safety, the environment, and the
workplace. The most important of the post-New Deal doctrines was an
expansive interpretation of Congress's power to regulate interstate
commerce, which the Court extended to include any activities that
might affect commerce indirectly. In 1995, however, the Supreme
Court began taking tentative steps toward resurrecting some of the
constitutional limitations on the regulatory state that had been
dormant since the '30s. In controversial 5-4 rulings, the Court
limited Congress's power to ban guns in schools, for example, and
to punish violence against women, holding that the laws did not
involve commercial activities and therefore couldn't be justified
by Congress's authority to regulate interstate commerce.

These decisions have been appropriately criticized as activist and
contemptuous of Congress by liberal supporters of the regulatory
state. A provocative new book by Thomas Keck accurately calls this
The Most Activist Supreme Court in History because it has struck
down 33 federal laws since 1995, the highest annual average ever.
Nevertheless, the Rehnquist Court's so-called federalism revolution
has not yet delivered what the conservatives hoped. Every time the
conservative justices have appeared on the brink of striking down a
federal statute with real political support, such as the
Environmental Protection Act, O'Connor or Kennedy have written
hedging opinions reassuring moderates that the Court intends to
challenge congressional power only at the margins. But, if O'Connor
or another liberal justice were to retire, and if Bush nominated a
true believer in the Constitution in Exile, the federalism
revolution would go into overdrive. And Democrats might not be able
to block the appointment because, unlike abortion, federalism is
not, at the moment, an issue the public understands or cares much
about.

If Bush is reelected, the president's advisers are determined to
choose justices who will be strict constructionists in the mold of
Justices Clarence Thomas and Antonin Scalia. White House officials
told me that even a respected judicial conservative like J. Harvie
Wilkinson III, who has urged moderation in federalism cases, has
been criticized by some presidential advisers as a "squish" for his
refusal to carry the Constitution in Exile to its logical
conclusion. Instead, these advisers might recommend someone more
like Judge J. Michael Luttig, who tangled with Wilkinson in a
recent case involving the constitutionality of environmental
protections for red wolves. (Wilkinson said Congress could protect
the wolves to promote tourism because tourism affects commerce;
Luttig found the connection between tourism and commerce too
remote.)

Although both Wilkinson and Luttig are intellectually serious and
thoughtful candidates, both would be resisted by Senate Democrats
because their records are well-known. Therefore, Bush might try a
stealth candidate who has a shorter paper trail. Indeed, the White
House already has a list of stealth candidates along these lines,
many of whom are federal appellate judges appointed during Bush's
first term. These candidates include people like Steven Colloton of
Iowa, Jeffrey Sutton of Ohio, and Edith Brown Clement of Louisiana,
whom the Senate unanimously confirmed in 2001.

How would a stealth candidate like Clement perform on the Supreme
Court? Everything about her record suggests she would
enthusiastically support the federalism revolution. This year, for
example, a group of Texas developers challenged the
constitutionality of the Endangered Species Act after the U.S. Fish
and Wildlife Service, in an effort to protect a rare species of
underground bugs, denied them a permit to develop a shopping mall.
The Texas appellate court rejected the challenge, but Clement
joined a blistering dissent by Judge Edith Jones (another possible
Bush Supreme Court nominee) criticizing the panel for crafting "a
constitutionally limitless theory of federal protection."

Taken to its logical limits, the Constitution in Exile would call
into question not only environmental protections but workplace
regulations like the Occupational Safety and Health Act.
Furthermore, in the hands of a determined Bush majority on the
Supreme Court, Congress's power to ban discrimination might be
challenged as well. In a series of cases, the Supreme Court has
limited Congress's power to authorize private individuals to sue
states for discrimination or other violations of federal law. So
far, the effect of these decisions has been muted by the fact that
Congress still has the power to refuse to fund state programs
unless the states promise in advance not to discriminate.

But some partisans of the Constitution in Exile on the lower courts
are already questioning that power. In an important case this year,
a panel of the federal appeals court in Washington, D.C., upheld a
suit against the suburban Metro public transportation system by an
employee who claims he was fired because he suffered from bipolar
disorder. Congress had the power, the judges held, to condition the
receipt of federal transportation funds on Metro's willingness to
waive its immunity from lawsuits. In an unsettling dissent,
however, Judge David Sentelle, a supporter of the Constitution in
Exile, disagreed that Congress had the power to "expose the states
to liability" for discrimination suits, because he thought there
was only a remote connection between the purpose of the federal
grant (supporting transportation) and the conditions of its receipt
(preventing discrimination). This radical logic, if embraced and
extended by a Bush-appointed Supreme Court, would represent a
declaration of war on Congress, preventing the legislature from
prohibiting race and sex discrimination in programs that receive
federal funds and calling into question Title VI of the 1964 Civil
Rights Act and Title IX of the 1972 Education Amendments.

As long as Congress remains Republican, it's conceivable a Bush
Supreme Court could get away with attempting to impose restrictions
on congressional power that have been unthinkable since the '30s.
But, eventually, the Constitution in Exile might be invoked to
strike down federal laws that the current Congress cares intensely
about--such as federal criminal laws whose connection to interstate
commerce is sometimes hard to discern. At some point, if the Court
turns sharply right on federalism issues, it's not hard to imagine
a conflict between Congress and the Court more dramatic than
anything we've seen since the Warren era. In short, the greatest
danger from a Bush Court is not the overruling of Roe v. Wade but
the overruling of the post-New Deal regulatory state.

What about a Kerry Court? Throughout his campaign and Senate career,
Kerry has not indicated much interest in using the courts as an
engine of social change. And, even if he wanted to do so, he is
likely to face a Republican Senate that would make it hard to
appoint liberal activists in the style of William Brennan. It seems
a fair bet, therefore, that Kerry would appoint judges like the
Clinton appointees, Stephen Breyer and Ruth Bader Ginsburg, who
believe the Court should reflect changes in social attitudes rather
than unilaterally impose them in the face of popular resistance. In
addition to political pressure to appoint the first Latino justice,
which Bush would face as well, Kerry might look to Clinton
appointees like David Tatel and Merrick Garland on the U.S. Court
of Appeals for the Washington, D.C. Circuit, both scrupulous,
intelligent, and fair-minded moderates.

Over the long term, it's true that Kerry justices would be more
likely than Bush justices to recognize a constitutional right to
gay marriage, for example. But, on the current Court, both the
liberal and moderate conservative justices understand the dangers
of a public backlash and are therefore unlikely to impose gay
marriage on the nation anytime soon. And, while Kerry justices
would take a more expansive view of Roe than Bush
justices--continuing to strike down bans on partial-birth
abortions, rather than reversing course and upholding the
congressional ban--these are issues at the margins of our sexual
politics that only constitute a tiny fraction of the total
abortions performed.

But there is one area where Kerry justices could diverge
dramatically from Bush justices: the relevance of international
law. On the Rehnquist Court, Breyer and Ginsburg have
enthusiastically endorsed looking to international laws and
judicial opinions to determine the meaning of the U.S.
Constitution. Last month, during arguments about the
constitutionality of allowing 16-year- olds to be executed, both
Breyer and Ginsburg emphasized that the 110 countries that allow
capital punishment have renounced the execution of juvenile
offenders. This prompted Scalia to interject with annoyance, "So
what did John Adams think of the French?"

The willingness of liberal justices to consult international norms
in constitutional cases has become a rallying cry for social
conservatives: Bork's most recent book is called Coercing Virtue:
The Worldwide Rule of Judges. But, although Bork's book is a
slapdash polemic, other, more thoughtful conservative scholars,
such as Jack Goldsmith of Harvard Law School, have argued
persuasively that too much attention to international law could
thwart U.S. constitutional traditions and reignite a domestic
culture war. There are, after all, dramatic legal and cultural
differences between European and American views about free
expression, privacy, and due process. This means that, if judges
become too willing to look to Europe, they may impose values on
U.S. legislatures that the American public will be moved to resist.
Moreover, there is nothing inherently progressive about European
views on these contested issues: If U.S. courts looked to Europe in
abortion cases, for example, they would allow more restrictions
than Americans now tolerate.

Breyer and Ginsburg have been appropriately cautious in invoking
international norms, citing them only as additional evidence of a
consensus in cases where a clear majority of states have also
rejected a controversial practice, such as sodomy laws or the
juvenile death penalty. But it's possible that younger justices of
a more internationalist bent might be more aggressive about
invoking a purported international consensus to strike down
practices that a majority of the American public continues to
support--such as the death penalty for adults. For example, Dean
Harold Koh of Yale Law School, mentioned as a possible Kerry
Supreme Court nominee, has supported the idea that U.S. courts
should expansively apply international legal precedents without the
authorization of the president and Congress. And some justices have
begun to invoke international law in areas where there is intense
social disagreement, such as affirmative action. If anything could
reignite the culture wars, it would be a decision by the U.S.
Supreme Court to thwart deeply felt currents in American public
opinion in the name of the international community. Given Kerry's
emphasis on international opinion in his campaign, there's no reason
to expect him to be attuned to this danger.

Concerns about the Supreme Court never determine presidential
elections, but particular elections can indeed redefine the Court.
After his landslide reelection in 1936, Franklin Delano Roosevelt
made five nominations in the next four years; Nixon, elected in a
squeaker in 1968, made three in similarly short order. The
Republicans have a more aggressive agenda for reshaping the Court
than the Democrats, and Bush has made his constitutional vision
clear. It has little to do with overturning Roe v. Wade, but it has
everything to do with resurrecting limits on federal power that
might tie Congress's hands in domestic affairs as well as in the
war on terrorism. Although Bush has aggressively expanded the size
of the national security state since September 11, he has committed
himself to a judicial vision that could render some of his own
programs--including federal criminal laws he
supports--unconstitutional. Kerry would feel less immediate
pressure to use the courts as engines of social change because
liberals won the old culture war; but, if the justices he appoints
are too expansive in their concern about international opinion,
they might inadvertently ignite a new culture war. In short,
neither Bush nor Kerry justices are likely to be consistent
defenders of judicial restraint. But at least voters in this
election have a clear choice: conservative judicial activism or
liberal judicial activism. Take your pick.

share this article on facebook or twitter print this article