The likely impact of the presidential election on the Supreme Court
Michael C. Dorf
Special to CNN.com
(FindLaw) -- During the 2000 presidential election, Democratic nominee Al Gore told voters that the choice between his candidacy and that of Republican George W. Bush would likely determine who named the next three justices of the Supreme Court.
Gore's prediction did not come to pass. The court's membership has not changed since 1994, when President Clinton named Stephen Breyer to fill the seat vacated by Harry Blackmun. But the justices are not getting any younger.
Justice John Paul Stevens is 84; Chief Justice William H. Rehnquist, 79; and Justice Sandra Day O'Connor, 74. By the time of the 2008 presidential election, all but two of the current justices will be older than 70. Even if, as we should hope and pray, they continue to enjoy good health, it is hardly unreasonable to think that one or more of these public servants would choose to retire some time before then.
Voters who are still undecided between President Bush and Senator Kerry would do well to contemplate how the Court could differ depending on which man prevails in November.
Extrapolating judicial decisions from the commitments of the president who nominates justices is fraught with uncertainty. Nonetheless, whatever Ralph Nader may say about the interchangeability of Republicans and Democrats, when it comes to judicial appointments, a clear contrast emerges.
The most prominent issue: Abortion
When presidential candidates talk about the people they would nominate to the Supreme Court, it's most frequently in the context of abortion rights. Ronald Reagan first campaigned for the White House on the issue in 1980, and once in office he attempted (unsuccessfully) to overturn the Court's 1973 decision in Roe v. Wade through the appointments process.
Since then, Republican candidates have typically followed Reagan's lead, energizing the religious right by promising Justices who will turn the abortion issue over to the state legislatures and Congress. Meanwhile, Democrats have appealed to their base by calling attention to the slim majority on the current Court in favor of retaining a constitutional right to choose abortion -- and the possible implications of the addition of a few more Justices who oppose such a right.
Four of the last six elections resulted in Republican presidents, and seven of the Supreme Court's nine current members were appointed by Republican presidents. Yet Roe v. Wade remains the law of the land. One might think, therefore, that the issue is settled. But in fact, it is not.
Three justices -- Rehnquist, Antonin Scalia, and Clarence Thomas -- remain committed to overturning Roe. Meanwhile, two of the Court's three oldest members -- justices Stevens and O'Connor -- are part of the six-justice majority for recognizing a constitutional right to abortion.
Should President Bush have the opportunity to name anti-Roe successors to these two justices -- or to any two or more of the six justices who oppose overturning Roe -- there is little reason to doubt that he would seize it. The result would be a Supreme Court majority for eliminating the constitutional right to abortion.
Bush and Kerry on abortion
President Bush has made no secret of his pro-life views, or of his willingness to use the judicial appointments process to advance them. He has nominated outspoken critics of Roe v. Wade to seats on the lower federal courts. Moreover, he has frequently pointed to Justices Scalia and Thomas -- both strong critics of Roe -- as models for his own likely choices to the high court.
Senator Kerry has been equally direct in the other direction. During the primary season, Kerry pledged that he would only appoint pro-choice justices as President.
We can expect that in competing for swing voters, both President Bush and Senator Kerry will downplay their respective positions on abortion, seeking to portray themselves as centrists.
But no one should be fooled: A Bush victory will greatly increase the likelihood that Congress and the state legislatures will be able to ban most abortions at some point in the next four years. In contrast, a Kerry victory will almost surely preserve the status quo of legal abortion prior to the third trimester of pregnancy.
Affirmative action, school vouchers, and states' rights
On other issues as well, the differences between Bush and Kerry could prove decisive.
For example, last year, a 5-4 majority upheld preferences for disadvantaged racial minorities in law school admissions in Grutter v. Bollinger. The Bush administration had filed a brief urging the Court to invalidate the program. A Bush victory in November could spell the end for affirmative action in higher education, and also more broadly -- for instance, in nearly all employment contexts, as well.
Two years ago, in the case of Zelman v. Simmons-Harris, a different 5-4 majority upheld a Cleveland private school voucher program, despite the fact that 96 percent of the students who received the vouchers redeemed them at religiously affiliated schools. Should Kerry be elected, his nominees would likely side with the Zelman dissenters in insisting on a stricter separation of church and state. Depending on how much weight would be given to this recent precedent, the new Supreme Court might overrule Zelman, and reject school vouchers, at least when they are used overwhelmingly at religiously affiliated schools.
The Supreme Court also is closely divided on questions of states' rights. In the past seven years, the court has invoked states' rights to invalidate all or part of the following acts of Congress: The Brady Handgun Violence Prevention Act; the Religious Freedom Restoration Act; the Age Discrimination in Employment Act; the Violence Against Women Act; and the Americans with Disabilities Act.
This year, however, in Tennessee v. Lane, a 5-4 majority of the Court upheld a different provision of the Americans with Disabilities Act, and last year, in Nevada Dep't of Human Resources v. Hibbs, a 6-3 majority upheld the Family and Medical Leave Act. Whatever these latest precedents portend, it is fair to say that Bush justices would be much more likely than Kerry Justices to invoke states' rights to strike down civil rights legislation.
To be sure, while in office, President Bush has not exactly ceded power to the states. His legislative centerpiece, the No Child Left Behind Act, imposes extensive new federal mandates on state and local educators; he supported the creation of a vast new federal bureaucracy in the Department of Homeland Security; and his Justice Department under Attorney General John Ashcroft has sought to supercede voters' decisions in California and Oregon legalizing medical marijuana and physician-assisted suicide, respectively.
But we can distinguish between the policies Bush favors as president and the legislation his judicial appointees would likely uphold. Looking to his two favorite jurists, we see that justices Scalia and Thomas sided with the states, and against the federal government, in each of the divided rulings discussed above.
In contrast, Clinton appointees Ruth Bader Ginsburg and Stephen Breyer voted with the federal government in each of these cases, and Kerry appointees would be likely to follow suit.
Same-sex marriage and sweeping executive power
Two other politically divisive issues -- same-sex marriage and executive power in the war on terrorism -- are unlikely to be much affected in the courts by the coming presidential election.
In 2003, in Lawrence v. Texas, a 6-3 majority of the Court struck down a Texas law prohibiting same-sex sodomy. Only five months later, the Massachusetts Supreme Judicial Court invoked the reasoning in Lawrence in support of its ruling in Goodridge v. Dep't of Public Health, finding a right of same-sex marriage under that state's constitution.
However, the U.S. Supreme Court is unlikely to follow the same path as a matter of federal constitutional law -- no matter who appoints the justices in the coming four years. After all, the Lawrence decision contains language specifically distinguishing "formal recognition" of same-sex relationships -- read "marriage -- from private consensual conduct.
Moreover, both President Bush and Senator Kerry oppose same-sex marriage. Although the president's opposition seems more vociferous, whichever man wins in November, the Supreme Court is not likely to recognize a federal constitutional right to same-sex marriage any time soon.
What about the War on Terror? Senator Kerry's campaign Web site criticizes the "Era of John Ashcroft," objecting to practices like "holding detainees indefinitely without cause." It is thus fair to say that a Kerry Justice Department and Defense Department would adopt different policies and practices.
But there is little reason to think that the outcome of the election would have much effect on the view the Supreme Court takes of aggressive executive action. In last week's decision in Hamdi v. Rumsfeld, eight members of the Court rejected the Bush administration's position that it could hold a U.S. citizen indefinitely based on its essentially unreviewable determination that the detainee is an "enemy combatant." Only Justice Thomas sided with the administration, while Justice Scalia (joined by Justice Stevens) went furthest in denouncing the Bush approach.
Accordingly, should Bush win the election and name several deeply conservative justices to the Supreme Court, he may find to his chagrin that in this context "conservative" means something like "desiring to conserve our ancient liberties."
Nominations often have unpredictable results
Even on the issues on which the court is currently divided, a president has only a limited ability to affect the course of the law via the appointments process.
Presidents only nominate Supreme Court Justices (and other federal judges), who must be confirmed by the Senate. While it is quite possible that President Bush would have a Republican Senate in his second term, or that a President Kerry would have a Democratic one, it is highly unlikely that either party will be able to capture 60 seats, the number needed to end a filibuster. So a filibuster will remain a potential threat to block the most extreme judicial nominees.
Even absent the risk of a filibuster, presidents may be loath to expend the considerable political capital necessary to gain confirmation of a highly controversial nominee. For that reason, either Bush or Kerry might be inclined to name moderates to the high court.
In addition, justices selected for their views on one set of issues may prove unpredictable on others.
For example, during his first term in office, President Franklin Delano Roosevelt was frequently at odds with the Supreme Court. When the opportunity arose, he named justices that he knew would uphold the New Deal. But within a decade, the legality of the New Deal was settled law, and questions of civil rights and civil liberties came to dominate the Supreme Court's agenda.
All of FDR's justices had been "liberal" in the sense that they were willing to uphold the expansion of the federal regulatory state, but when it came to the new issues, they divided in ways that could not have been predicted based on their prior careers.
The same phenomenon could occur over the next generation. Justices chosen for their views on abortion, affirmative action, and the scope of the president's war-making power could be asked to address questions involving new forms of surveillance, human cloning, and other issues that, by their very nature, cannot be foreseen today. Attitudes towards today's issues may prove highly unreliable predictors of attitudes towards tomorrow's.
Still, when all is said and done, it is likely that, if the next president gets to nominate several justices to the Supreme Court, it will make a difference whether that president is named Bush or Kerry.
Sure, a Kerry pick could prove to be a closet conservative on some issues, or a Bush nominee could have a libertarian streak, but what are the odds that Kerry would move the court as a whole to the right or that Bush would move it to the left?
As Damon Runyon used to say, "the race is not always to the swift, nor the battle to the strong, but that's the way to bet."
Michael C. Dorf, a FindLaw columnist, is professor of law at Columbia University. His new book, "Constitutional Law Stories," is published by Foundation Press, and tells the stories behind 15 leading constitutional cases.