The Magazine

Night of the Living Constitution

Explaining the judicial consequences of an Obama presidency

Oct 20, 2008, Vol. 14, No. 06 • By TERRY EASTLAND
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Have you noticed how the justices of the Supreme Court are living longer and longer, compiling more and more years of service--far more than they used to? Doubtless the justices tire of seeing their ages mentioned in stories triggered by the presidential race that contemplate who is most likely to retire and leave a vacancy to be filled. But here is what the birth certificates say:

John Paul Stevens, 88

Ruth Bader Ginsburg, 75

Antonin Scalia, 72

Anthony Kennedy, 72

Stephen Breyer, 70

David Souter, 69

Clarence Thomas, 60

Samuel Alito, 58

John Roberts (the chief justice), 53.

Stevens has served the longest of the nine, and by next July he will have completed 34 years, than which only five justices ever recorded more. (He is threatening the record in this obscure competition, which was set by the justice whose seat he took in 1975, William O. Douglas, who served more than 36 years.) Because of his age and length of service, Stevens is widely considered the most likely to step down, followed by Ginsburg. Both happen to be judicial liberals on a Court that has four liberals (Breyer and Souter being the other two) and four judicial conservatives (Scalia, Thomas, Alito, and Roberts). The fickle Kennedy tends to provide the fifth vote in close cases, particularly those involving abortion, race, and religion.

Now, John McCain promises to name judicial conservatives to the Court, while Barack Obama vows to pick judicial liberals. So you can see what could happen if McCain is elected president. For if there is a vacancy during his term, the departing justice is likely to be a judicial liberal. The same is true if there is a second vacancy. One can imagine a President McCain replacing liberals with conservatives and thus finally meeting that ancient Republican goal (dating from the 1968 presidential campaign) of an unambiguously conservative majority on the Court. In this liberal nightmare, the relatively youthful majority would be busy whittling away at Roe v. Wade, eliminating race-based preferences in the public sector, strengthening the government's hand in fighting terrorism, and facilitating a larger role for religion in public life--among many other bad, bad things.

But, for McCain, actually replacing liberals with conservatives would be far more easily said than done. Indeed, liberals who worry that a conservative majority could be created by the addition of a single McCain appointee also know that, regardless of who is elected president, a Democratic Senate will almost surely persist through the first two years of the next presidential term--and probably all four. With comfortable majorities, Senate Democrats will have the power to prevent the appointment of any nominee.

As for Obama, if he is elected president and Stevens or Ginsburg (or both) step down during his term of office, then he gets to replace a liberal with a liberal--maintenance work, you could call it, though the liberal cohort would become younger. Obama couldn't create a liberal majority unless at least one conservative, or man-in-the-middle Kennedy, were to step down, and that looks doubtful, at least in the next four years. Neither Kennedy nor Scalia shows signs of leaving the Court, and the three remaining conservatives are young, as young is measured on the Court--two of them have sat only briefly.

Still, if a conservative were to retire, President Obama would find himself in a winning situation as regards confirmation of his nominee. Indeed, it's hard to imagine a Democratic Senate rejecting any Obama nominee for any vacancy, at least not on grounds of judicial philosophy.

Which raises the question of Obama's judicial philosophy. We know what McCain's is. He is the nominee of a party that for decades has advocated interpreting the law on its own terms and not infusing it with ideas or values not found within the Constitution--a party that opposes government by judiciary and supports judicial restraint. The non-lawyer McCain reflects this philosophy in typically direct statements, such as this from a speech on the courts last spring at Wake Forest University: "A court is hardly competent to check the abuses of other branches of government when it cannot even control itself."

There can be little doubt that McCain accepts and will act in furtherance of his party's philosophy. He voted for the Roberts and Alito nominations, both of which Obama opposed, and he holds up both as models for the kind of judges he would appoint.

In sharp contrast to McCain, Obama is the nominee of a party that has embraced the activism of the Warren Court and its expansion under the Burger Court (think Roe v. Wade) and which has hardened in its hostility to judicial conservatism during the Bush presidency. Obama has proved to be one of his party's most determined opponents of judicially conservative nominees. He voted not only against Roberts and Alito but also against six circuit-court nominees and joined in the Democrats' filibustering of such nominees--which filibustering was without precedent in Senate history.

Obama, a Harvard-trained lawyer who for a decade taught constitutional law at the University of Chicago Law School, has said "my judges" should have "the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old." He has characterized such people as being in "the minority" and "on the outside" and not having "a lot of clout." His judges should help them by importing to their deliberations their own "perspectives," "ethics," and "moral bearings." Thus his judges would carry out the judiciary's "historic role" of protecting those who "may be vulnerable in the political process," who have seen "the system not work for them," who don't "have access to political power," and who "can't protect themselves from being dealt with sometimes unfairly."

What's striking about comments like these is that Obama seems to be espousing a sort of "Footnote Four" judicial philosophy. Footnote Four is the most famous footnote in constitutional law. It's found in United States v. Carolene Products, the 1938 case in which the New Deal Court sustained a law prohibiting the shipment of so-called "filled milk" across state lines. (It is remembered today solely because of its renowned footnote.) Marking a turning point in constitutional law, Footnote Four confirmed the court's new-found deference to economic regulation while announcing the judicial intention, as Lucas A. Powe Jr. puts it in his history of the Warren Court, to protect "those who need protection." The footnote called them "discrete and insular minorities"--those Americans, says Powe, who "even in a well-functioning political process may not be able to form coalitions and thus may be subject to discriminatory legislation."

For Obama, it would seem that what he calls minorities or outsiders would encompass not only those "vulnerable" in the political process and thus "subject to discriminatory legislation" in a Footnote Four sense but also those who encounter a "system" that doesn't work for them. It appears for Obama that the courts must be involved in improving things for all of those "who need protection," and it could be a large group considering that Obama's informal, campaign-trail list hardly seems exhaustive.

Obama, who is a stout defender of the right to abortion announced in Roe, would seem to want judges sympathetic to arguments that the Constitution protects a fundamental right to education or health care or housing--perhaps even a right to credit. Though Obama has supported the death penalty in certain, narrowly defined circumstances, his philosophy would also seem to entail its judicial abolition. And with regard to race-based preferences, judges who share his philosophy could push for their permanent institution in higher education, employment, and contracting as a way of making the "system" work better for certain minorities.

An Obama judiciary would be a plainly liberal one. Not surprisingly, Obama has endorsed the idea of a "living Constitution," one judges adapt to meet the needs of a changing society. A living Constitution has its analogue in what might be called a "living U.S. Code," by which judges rewrite federal statutes they regard as somehow deficient, which for Obama could mean statutes having an adverse impact on people "who need protection." Obama's model justice is Earl Warren, who saw the role of the Court as that of doing justice, regardless of what the law at issue in a case might say. The senator must have cringed when he heard John Roberts, during his confirmation hearing to be chief justice, answer a question about what the biggest threats to the rule of law might be by saying there was really only one threat--that of judges who take their "authority and extend it into areas where they're going beyond the interpretation of the Constitution, where they're making the law. .  .  . Judges have to recognize that their role is a limited one. That is the basis of their legitimacy."

This election plainly poses the question, if voters realize it or not, of whether we want judges like Roberts or judges eager to extend their authority beyond what is legitimate and erase the venerable distinction between law and politics. This question will be there even if no Supreme Court vacancies occur during the next four years. For the next president will certainly name judges to the federal appeals courts. At the usual turnover rate, if Obama is elected, by the end of his four-year term eight of the twelve regular circuits could have majorities appointed by Democratic presidents. By the same measure, if McCain is elected, every one of the twelve circuits, including the notoriously liberal Ninth Circuit, could have a Republican-appointed majority. The appellate courts are especially important today because, with the Supreme Court deciding many fewer cases than it used to, they effectively function as the courts of final appeal in their jurisdictions.

Just as the appeals courts could go either way, so could the Supreme Court: a President McCain could have the opportunity to create a conservative majority or a President Obama could have the chance to create a liberal majority. On the other hand, it's possible that the composition of the Court when the next election rolls around will be the same as it is today. The same justices could be sitting in their same chairs. They would be four years older, and they would have served four more years. And Justice Stevens, age 92, would hold that record.

Terry Eastland is the publisher of THE WEEKLY STANDARD.