Patterico's Pontifications

5/18/2007

Stakes Are High for the High Court in the 2008 Presidential Election

Filed under: 2008 Election,Judiciary — Patterico @ 7:57 pm

At SCOTUSblog, Tom Goldstein has an interesting analysis of what the next presidential election is likely to mean for the Supreme Court. For Republicans like me, who think a Democrat will win in 2008, the outlook is bleak:

whether the Court moves more fundamentally to the right, so that it could genuinely undo the jurisprudence of the Warren Court, depends on the next President. If two or three of the moderate-to-liberal votes were replaced with genuine conservatives, the existing constraints on more radical doctrinal shifts created by swing votes like Kennedy or O’Connor would be lifted.

Those sorts of dramatic changes are not at all implausible. Current law students tend to view Warren Court-era decisions as if they were written into the text of the Constitution itself. But as noted, Roe v. Wade and the exclusionary rule have been the subject of recent opinions urging their overruling. Miranda was recently challenged. A number of cases challenging existing doctrine on the separation of church and state are likely to reach the Court in the coming years.

By contrast, if a Democratic President wins in 2008, the current conservative-leaning détente on the Court is likely to be enshrined for the indefinite future. Imagine if in 2009 Justices Stevens, Souter, and Ginsburg were replaced by Judge Garland (then age 57), former Solicitor General Seth Waxman (58), and Dean Elena Kagan (49); they would join Justice Breyer (71). On the right, you would have Scalia (73); Thomas (60); Alito (59); Roberts (54). And Kennedy in the center (for this Court) would be 73.

In that scenario, the potential range of movement in the Court’s jurisprudence would narrow dramatically. Only three Justices – one from the left, one from the right, and one in the center – would be at an age at which they would even be thinking of retiring. The other six Justices would be expected to serve at least 10 (and more likely 15 or 20) years.

In sum, the 2008 election window presents the most significant opportunity to shape the direction of the Supreme Court that can be anticipated for roughly the next two decades – i.e., as far into the future as anyone can reasonably hope to look. For the left and the right, the stakes are genuinely high.

I have regarded it as a foregone conclusion for some time now that a Democrat will win the 2008 presidential election, so analyses like this depress me quite a bit.

11 Responses to “Stakes Are High for the High Court in the 2008 Presidential Election”

  1. Buck up mate! Give your readers a slender reed upon which to pin their hopes. Surely there must be some scenario that would keep the White House out of Democratic clutches in 2008.

    Putting aside the diverse possibilities for the Democrats to shoot themselves in the foot, aren’t there also possibilities for the GOP to come up with a strong ticket?

    Think Romney-Steele. Think Giuliani-McCain. Think Thompson-Powell. Which would do the best?

    Andrew (bbe670)

  2. Its a good thing that we still get to vote instead of relying on conventional wisdom :)

    Thompson will win, never fear. (Fred that is)

    Lord Nazh (d282eb)

  3. Fred Thompson/Condi Rice.

    We’d pwn…

    Scott Jacobs (a1de9d)

  4. i see no reason for depression regarding the ’08 election. rudy is going to be a very formidable candidate as in my opinion, the primary issue will be national security. with the entire field of dem candidates running to the left, i predict a hillary VS rudy race with rudy winning in a landslide

    james conrad (7cd809)

  5. Patterico:

    I have regarded it as a foregone conclusion for some time now that a Democrat will win the 2008 presidential election…

    Why?

    You have said this many times. But you have never explained what has driven you to that conclusion.

    And if you really think that, will you still vote? Will you still urge, through PP, others to vote?

    There is a terrible danger in fatalism; just ask the free and independent nation of Tibet.

    Dafydd

    Dafydd (445647)

  6. And Rudi is soooo conservative (not). If I’m gonna have a Democrat I’d rather have Hillary who has balls enough to admit it.

    nk (a074d4)

  7. My #6 was response to #4.

    nk (a074d4)

  8. The stakes, insofar as the Supreme Court is concerned, really depend on who gets the nomination. If either McVain or Giuliani gets the nomination, we’re not going to get much better (or, methinks, anything better) than Hillary Clinton would give us.

    McCain said, the first time he was running for president, that he opposed overturning Roe v. Wade, now or ever. We have no reason to believe his professed conversion since then, especially since he’s spent most of his political career spitting in the faces of conservatives. And a Justice who would uphold Roe is most unlikely to be solid on the other issues. (Lest I be accused of advocating that we turn Supreme Court appointments into single-issue discussions.) In any event, there’s no way that McCain would ever nominate Justices who would strike down his single accomplishment: campaign-finance reform–or, as George Will has quite appropriately called it, government rationing the free speech of everyone except the media.

    Giuliani has been at pains to say that a strict constructionist might well vote to uphold Roe v. Wade. (Of course, we don’t really want strict constructionists, we want reasonable constructionists like Augustus Scalius or Thomas Magnus, but that is neither here nor there.) We have no basis for believing that Giuliani would appoint the kind of Justice we want. Especially after he said (in April) that there’s a constitutional right to have an abortion. http://www.youtube.com/watch?v=QZe1j4csMq8 And I don’t like the idea of Supreme Court Justices being selected by someone who thinks (as Giuliani does) that if you have a constitutional right to X, then the government should pay for you to have X. That sounds like something Ted Kennedy would think.

    Alan (d4c0fe)

  9. We need to make sure the Supreme Court won’t intervene in torture. Except for McCain, the GOP candidate couldn’t be more clear that we need a fictional hero (Jack Bauer) in our supposed “war on terror” to use “whatever they can think of” to get unreliable information against a apocryphal plot — the ever-looming dirty bomb about to wipe out one of our cities.

    The Supreme Court is about to become superfluous anyway. When the President sends his White House counsel and chief of staff to get a signature for an illegal policy from a disabled non-acting Attorney General, fails, and goes on with the illegal program anyway… How can we even pretend that there is any pretense of abiding by a rule of law?

    nosh (de5a83)

  10. rudy is going to be a very formidable candidate as in my opinion, the primary issue will be national security. with the entire field of dem candidates running to the left, i predict a hillary VS rudy race with rudy winning in a landslide

    You don’t think Clinton’s campaign combined with the media will be able to get people to feel comfortable with her in charge of national security? Remember she doesn’t have to beat Giuliani on the issue, just get a draw. Then her alleged superiority on domestic issues, again according to her campaign spin and the media, will get the mushy middle to vote for her, especially single women. What domestic issue does Giuliani even have? Some Christian conservative leaders have already said they won’t vote for him.

    Gerald A (6b39c1)

  11. 5

    “You have said this many times. But you have never explained what has driven you to that conclusion.”

    I can’t speak for Patterico of course but I suspect the obvious disaster of the Bush Presidency has something to do with it. Personally I find this disaster far more depressing than the prospect of a status quo Supreme Court.

    James B. Shearer (fc887e)


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