Not Sure If You're Going To Vote For Obama? Consider The Judicial Apocalypse That McCain Would Usher

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The New Republic
McJustice by Jeffrey Rosen
Liberals' long-feared judicial apocalypse is nigh.
Post Date Wednesday, November 05, 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.

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