LONG: President's choice

An activist Supreme Court

By Wendy E. Long | Friday, October 10, 2008

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The sleeper issue of this presidential campaign is what the new president will do about the liberal, activist Supreme Court that recently convened its 2008-09 term.

Far from being in what Hillary Clinton calls a "right-wing headlock," the current Supreme Court — despite very modest moves in the direction of judicial restraint — is significantly to the left of the American public and persistently fails to uphold the Constitution in two ways.

First, it renders decisions based on the personal views of usually-the-same-five justices as to social, military, or other government policies, in disregard of the Constitution and laws enacted by the American people. This is called "judicial activism."Roe v. Wade is a classic example of this lawlessness: the Court snatched from "We the People" the ability to govern ourselves by deciding abortion policy - a subject the Constitution doesn't address.

Second, the Court fails to apply the clear commands of the Constitution, for example, to protect private property from being taken by the government unless it is for a public purpose. Kelo v. New London, in which the Court permitted a Connecticut city to condemn private homes to make way for a corporate office complex, is an example of this error.

The Court continues to be largely a liberal activist bench because it is split between liberal judicial activists (Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and David Souter) and "constitutionalists" who are faithful to the text and principles of the Constitution (Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito). The tie-breaker on many important cases between these two blocs is Justice Anthony Kennedy.

And on most high-profile constitutional issues, Justice Kennedy is a liberal judicial activist — for example, deciding that homosexual sodomy is a "right" protected by the Constitution and that the crime of raping children can never be punished by the death penalty, and relying frequently on international and foreign laws to trump American law. Because several factors have aligned in 2008 - the current make-up of the Court, the advanced age of so many justices, and the unprecedented politicization of the judiciary — Sen. Barack Obama or Sen. John McCain may have a greater impact on the Supreme Court, and hence its future rulings, than any president in our history.

At the end of the next president's first term in office, six of the nine Justices will be at least 73 years old. Justice John Paul Stevens will be 92; Justice Ruth Bader Ginsburg will be 79. Some retirements seem almost inevitable, and it's even possible there could be four to six vacancies on the nine-person Court for the next President to fill.

But Messrs. McCain or Obama could have a tremendous impact on the Court well into this century with evenone nomination. At this point, one more liberal justice could provide a fifth vote to invent a constitutional right to same-sex marriage, for example. Messrs. McCain and Obama have told us what we can expect from their Supreme Court appointments. Mr. Obama says he would appoint justices like Ginsburg, Breyer, and Souter - the liberal activist anchors of the current Court. He says his criterion for selecting justices is whether they have "heart" and "empathy" - exactly the opposite of the dispassionate model of justice our Constitution requires. Mr. McCain says his criteria are "judicial ability," "experience," "humility," and "impartiality." He has promised to nominate jurists like Chief Justice Roberts and Justice Alito.

That is a world of difference. Voters don't get to choose Supreme Court justices. The time for their choosing is now, as they elect a president whose judgment and criteria will be brought to bear on that task.

Wendy E. Long is counsel to the Judicial Confirmation Network.

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