Presidential Politics and The Future Court
At last night’s Faith Forum with Rev. Warren, we got another look at the two candidates’ views of the Supreme Court. Asked which sitting Supreme Court justice they wouldn’t have appointed, we got mostly predictable answers, though not entirely so.
Sen. McCain named four Justices. He named Justices Ginsburg, Breyer, Souter, and Stevens – the four who often vote together, and the press designates as the “liberal wing” of the Court. He claimed that nominations to the Court “should be based on the criteria of proven record of strictly adhering to the Constitution of the United States of America and not legislating from the Bench. Some of the worst damage has been done by legislating from the bench. And by the way, Justices Alito and Roberts are two of my most recent favorites.”
Sen. Obama named three Justices. He first named Justice Thomas, referring not just to disagreement with his Constitutional interpretation, but also to his relative inexperience at the time of his nomination. He added Justice Scalia on grounds of constitutional disagreement as well. Most interesting is his explanation for not nominating Roberts (whom he voted against). Sen. Obama stated: “One of the most important jobs of the Supreme Court is to guard against the encroachment of the executive branch on the power of the other branches. I think he has been a little bit too willing or eager to give an administration, whether mine or George Bush’s, more power than the Constitution originally intended.” This was certainly more thoughtful than merely repeating the standard cant about strict adherence. What are the implications of these contrasting views?
Obama’s response clearly suggests that he does not accept the view of Supreme Court deference view that some in the academy and on the Court have expounded. Roughly, the deferential view is that in times of heightened security threats, the courts should defer to executive branch decisions about security policy (for my development and criticism of this view, see here). By contrast, Obama’s statement indicates a reliance on a robust Court that can operate to check encroachments by the executive. If we posit that any executive will naturally tend to test the limits of its power from time to time, then a deferential view will lead to imbalance of powers. Moreover, there is reason to think that the executive might appropriately rely on the Court to check its excess. The Supreme Court has repeatedly discouraged other branches from making independent assessments of their constitutional powers, declaring that the Court alone decides who has the power to protect which constitutional rights (I’m thinking of cases like Boerne). The Court has also at times been willing to defer to the executive on matters of foreign affairs and national security. If the executive does not make a genuine independent assessment of constitutional limits, relying instead on the Court to play its institutional role to check excess, then when the Court defers, the consequence will be an imbalance of powers. An executive that relies on the Court to play a checking function may push the limits of executive powers far too far with a deferential Court. Obama does not promise that his administration will not test the limits of executive power, but he does suggest that he expects to confront a Court willing to fulfill its institutional role in upholding those limits. This institutional role is one the Chief Justice has not been willing to play (though it will be interesting to see whether or how such deference might change over time). So far his view has remained in a four vote minority.
As for McCain’s position, it is useful to recall that every Supreme Court nominee since 1968 has (arguably?) moved the Court towards the right on the political spectrum, except perhaps Justice Ginsburg’s replacement of Justice White (Cass Sunstein has an interesting post here about the development of the two “wings”). So when McCain said he would not have appointed Justices Souter and Stevens (appointed by Republican presidents), and would not have appointed a moderate pragmatist like Justice Breyer, he shares with the current Administration a more extreme view of what an acceptable Justice’s jurisprudence should look like. This view should give us all pause. As McCain at the Forum was quick to point out, there will likely be vacancies over the next several years, and it is not just the overturning of one or two cases that particularly rile some organized political groups that are at stake. A couple more Justices like Thomas would likely yield rulings allowing States to establish religion, rulings that begin to limit Congress’s commerce power to pre-New Deal parameters, and rulings that take seriously the notion of the “unitary executive,” a notion repeated by the Bush Administration in signing statements – among other dramatic changes. The Constitution would become a very different governing document (the abstract notion of a Constitution in exile might become real).
Given the real differences in constitutional vision that each of the candidates have (more on vision in general here), it is disappointing that the radical nature of McCain’s vision is not articulated for the public, relying as he does on the meaningless old saw of “strict construction.” By contrast, Obama’s reflections on the need for the Supreme Court to check the executive, even if that executive were himself, are particularly refreshing; and, I might add, right.