Most of us, surprisingly enough, are not lawyers. We're not experts in constitutional law. But we do have our personal pet issues about which we care passionately. And, for many of us, that is where our interest in the Supreme Court enters into our political understanding.
I make no claim to be an expert, or even amateur, court observer. But I do know we have a problem. Through a lengthy profile of Justice John Paul Stevens in last Sunday's NY Times Magazine, Jeffrey Rosen offers a helpful analysis of the present and future dynamics of the Supreme Court.
In short, another 4- or 8-year Republican administration could easily wreck much of the process we've made on your most important issues.
Chief Justice John Roberts's honeymoon is over. Rosen begins by describing the bitterly divided Court:
The last Supreme Court term, which ended in June, was the stormiest in recent memory, with more 5-to-4 decisions split along ideological lines than at any time in the court’s history. In a series of controversial cases about abortion, racial integration in schools, faith-based programs and the death penalty, the court’s four more conservative justices prevailed, with Justice Anthony M. Kennedy providing the crucial fifth vote. The four more liberal justices were often moved to dissent in unusually personal and vehement terms.
In discussing Justice Stevens, who many consider the most liberal, we realize how much the Court, and our political discourse, has gravitated toward the right in recent decades:
Justice Stevens, the oldest and arguably most liberal justice, now finds himself the leader of the opposition.
Stevens, however, is an improbable liberal icon. “I don’t think of myself as a liberal at all,” he told me during a recent interview in his chambers, laughing and shaking his head. “I think as part of my general politics, I’m pretty darn conservative.” Stevens said that his views haven’t changed since 1975, when as a moderate Republican he was appointed by President Gerald Ford to the Supreme Court.
“Including myself,” he said, “every judge who’s been appointed to the court since Lewis Powell” — nominated by Richard Nixon in 1971 — “has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That’s bound to have an effect on the court.”
Even a cursory glance at the ages and confirmation votes of the current membership shows how critical the situation is.
For the next president, s/he would almost certainly be making an appointment to replace a relatively more liberal justice. If a Republican wins the White House, he will likely not have the support in Congress to ram through a staunch conservative, but we need to remember the Justice Roberts had 78 votes for confirmation. Conservatives will NOT allow a Republican president to appoint a justice who might turn out to be liberal. Those days are over. Stevens and Souter turned out to be gifts that liberals will never again receive.
Even if a Democrat does win the WH, that does not mean that we will get a justice who is as liberal as Roberts is conservative. There are still a lot of moderate Democrats in the Senate who found no overwhelming reason not to confirm Roberts. However, there are increasinly few moderate Republicans. The day may be coming soon when there are none. The GOP will use every tactical scheme at their disposal to force moderate Democrats not to support liberal judges.
If we win the WH, we probably have the votes in the Senate, but appointing liberal justices in the next decade will largely be an exercise in maintaining the status quo. But if a Republican wins the WH, it is unlikely that he will send a SCOTUS nominee that Dems could support. We would be looking at a Mukasey type of situation as a best case scenario.
So, it seems that a look at the Supreme Court makes the 2008 race take on an even greater sense of importance. After all, it could be your key issue that the Roberts Court backtracks on. Have fun cheerleading for and/or betting on your favorite pick in the horse race, but come next spring, the SCOTUS issue will just be one more compelling reason to remember that we must be united and keep our eyes on the prize: winning the WH and expanding our majorities in Congress.