Whom do you want to nominate Justices for the Supreme Court in the next four years?
No issue is more vital in the race between Democrat Al Gore and Republican George W. Bush --repeat, no issue is more important than the makeup of the next Supreme Court--and therefore the future outlook for reproductive rights, civil rights, campaign finance reform, environmental protection and perhaps much, much more.
No issue is more crucial, for two reasons. First, no matter what the next President or Congress may do or think, among the three branches of the federal government, the Supreme Court is often first among supposed equals, wielding more authority than either of its counterparts through its power to declare unconstitutional the actions of Presidents (such as Harry Truman's seizure of the steel mills in 1952), as well as enactments of Congress or the state legislatures (such as those attempting to validate prayer in public schools).
It was the Supreme Court, of course, that held in Brown v. Board of Education in 1954, one of its most historic decisions, that public school segregation violated the Constitution. That decision opened not just the schoolhouse door but the gate to the modern civil rights movement, which in the past half-century has so nearly transformed the nation.
It was the same Court, however--different Justices in different times, but with the same powers--that in 1896 upheld a Louisiana "separate but equal" law, ushering in the six long decades of racial segregation that were not effectively ended until Brown (and not even then, in some areas). Even earlier, in 1857, the Court's infamous Dred Scott decision held that black people had no rights white people were bound to respect and that Congress could not prohibit slavery in the territories. The Civil War followed not long after.
So despite the enmity earned in the twentieth century by the Warren Court in the fifties and sixties for its controversial decisions (Brown, Miranda, Baker v. Carr), the Supreme Court has not always been--and need not necessarily be in the future--a bulwark of liberal attitudes. In the thirties, in fact, Franklin Roosevelt undertook his ill-fated "court-packing" scheme because of a series of Court rulings--such as one finding unconstitutional his National Industrial Recovery Act--that he thought were crippling his New Deal programs. In perhaps his worst political defeat, FDR failed to "pack" the Court, but the threat may have achieved his objective in several subsequent decisions--upholding, for example, federal power to prohibit shipment in interstate commerce of goods manufactured in violation of wage-and-hour laws. This was a startling about-face from an earlier ruling.
The second reason no issue is more critical in 2000 than the future makeup of the Supreme Court is that the present Rehnquist Court is so narrowly divided. Sometimes it presents a majority--usually including Chief Justice William Rehnquist--for conservative views; occasionally, it comes to a 5-to-4 or even 6-to-3 ruling for a more liberal attitude. The Court resembles, therefore, a closely balanced scale to which any added weight will tip it conclusively right or left.
A rightward ideological shift of just two votes could swing that 6-to-3 lineup, only rarely existing on the Rehnquist Court, into a solid 5-to-4 majority that in the future would follow the established pattern of Justices Antonin Scalia and Clarence Thomas, the two farthest-right members of the Court. Among other things, that might well doom Roe v. Wade, which protects a woman's right to choose. Three more Scalia&Thomas-style votes would transform what's now a back-and-forth Court into a conservative bastion that could last for generations--like the one that so frustrated FDR in the thirties.
Yet more conservative votes on the Court are exactly what the Republican candidate says he'd provide. He is on record that he'd appoint more Justices like Scalia&Thomas, those joined-at-the-hip right-wingers. And even if Bush loses the presidency, a Senate that remains in Republican hands--a real possibility--might block, or at least delay, the more liberal nominees a President Gore could be expected to select.
The best guarantee against any such outcomes--a President Bush, a Republican Senate or both--and hence the best hope for a Supreme Court that will not turn back the clock to Scalia&Thomas time, is a big Democratic victory across the board in November. And to those independents--and even some Democrats--who maintain there's so little real difference between the two parties that they'll vote for Ralph Nader of the Green Party or Patrick Buchanan of the Reform Party--the strongest answer is, again, that all-important question: Whom do you want to nominate Justices for the Supreme Court in the next four years?
Whatever one may think on other issues, there's a real difference between the candidates and the parties on the question of Supreme Court nominations. Gore's record suggests that his nominees--especially if he gets a Democratic Senate to work with--would be moderate to liberal, rather like those of Bill Clinton (who put Stephen Breyer and Ruth Bader Ginsburg on the Court). If the self-styled "compassionate conservative" wins the presidency and carries in a Republican Senate on his coattails, the next Supreme Court is all but guaranteed to be considerably more conservative than compassionate.
This dire possibility is never far from the minds of the constitutional authorities who review in this issue of The Nation the record of the Rehnquist Court in its recently concluded term. It is an ominous review, not only because of decisions already taken but because the narrowly divided Rehnquist Court could so easily--and so soon--be converted into a highly conservative bloc.
In the past thirty-two years, after all, nominations to the High Court have been made principally by Richard Nixon, Ronald Reagan and Bush the Elder, who would have made the situation worse had he known what he was doing when he nominated David Souter. With that choice, Bush didn't get the conservative promised him by John Sununu but suffered the biggest Court surprise since Dwight Eisenhower picked Earl Warren to be Chief Justice.
Nixon, Reagan and Bush the Elder represented eighteen years of middle-to-right conservatism, against only two years of Gerald Ford (who appointed John Paul Stevens, a reliable moderate who is now 80), four years of Jimmy Carter and eight of Bill Clinton. Carter, however, offers a sad example of the vagaries of Supreme Court nominations. In his four years in office, no Justice died or retired, so Carter made zero nominations. Nixon, by contrast, put four men on the high bench, including two Chief Justices, Warren Burger and William Rehnquist--a far more important fact than that Nixon also had two other nominees rejected.
Nor is it only the Supreme Court that's on the line. The trend toward fewer High Court rulings--about two-thirds as many as during the seventies and eighties--has greatly expanded the power of the federal courts of appeal, which Ronald Reagan and Bush the Elder packed with conservative judges. Today, there are no more African-Americans serving on appellate courts than there were under President Carter, whose appointments of women and minorities began to redress the racial and gender imbalances of the lower courts in his time. Long confirmation delays in the Republican Senate have been bluntly focused on minority nominees--for example, Richard Paez, a Hispanic-American, who had to wait four years before the Senate confirmed him for a seat on the Ninth Circuit. Together with Clinton's cautious approach to judicial selection--a Republican Senate gives him little choice but to send up "confirmable" nominations--these delays have helped prevent racial, gender or ideological balance on the appellate bench.
It's not likely that judicial selections by Bush the Younger, to be confirmed in a process dominated in the Senate by chairman of the Judiciary Committee Orrin Hatch and majority leader Trent Lott, will pick up where Carter left off. If Al Gore could send lower-court nominations to a more responsive Senate, however, the federal bench might begin to look more like America.
Again : Whom do you want to nominate Justices for the Supreme Court in the next four years?
The more conservative Court promised by Bush the Younger -- who is running on a flatly antiabortion platform -- would be a particular threat to a woman's right to choose. This last term the Rehnquist Court, re-examining the broad field of reproductive rights for the first time since 1992, reaffirmed Roe v. Wade in Stenberg v. Carhart, a challenge to Nebraska's "partial birth" abortion ban, but it did so by a scary 5-to-4 margin. And that decision does little to curb the many restrictions on abortion rights passed by the states since Roe (with lots more still pending in the legislatures).
Also at risk is an important element of democratic choice--campaign finance reform. Ironically, that's at least partially because even the Rehnquist Court has not attacked First Amendment guarantees of freedom of speech. Last term the Court rejected, for example, Congressional efforts to ban casino advertising on television, and the year before it rebuffed Congress's attempt to ban "indecent speech" (whatever that is) from the Internet. When the Rehnquist Court unanimously struck down the effort of an Irish gay group to march in the St. Patrick's Day parade in Boston, it ruled not on moral grounds but on the Court's plausible theory that a parade is an expression of ideas, so that those staging it have a right not to express views with which they disagree.
Close Court-watchers nevertheless detect a division among the Justices that could have great impact on campaign finance reform. The perceived split is between Justices who would ban all interference, of any kind, with free speech and those who would permit occasional limitations on the expressions of extremely powerful and/or wealthy interests and people, in order to preserve a marketplace of ideas open to all, regardless of wealth and power. The former group supports the 1976 ruling in Buckley v. Valeo that made the crucial distinction between spending on speech aimed at influencing a specific election (funds that can be regulated) and spending for "issue advocacy" supposedly designed only to advance a more general cause (like "democracy" or voter registration). Funds for issue advocacy are considered by the present Court to be free speech; therefore they cannot be regulated--hence "soft money," which effectively bypasses other spending limits, dominates campaign financing today and is the favored target of fundraisers for both parties. If Court appointments in the future strengthen those who support Buckley-like views, campaign finance reform is probably a lost cause for years to come.
The distinction in First Amendment attitudes may also affect, eventually, what could be called "subsidized speech" -- for instance, public television, professors in public universities and government-supported art institutions. The Rehnquist Court is divided as to what restrictions, if any, government can place on public funds devoted to such public purposes, a famous example being those Mayor Rudolph Giuliani attempted to impose on the city-subsidized Brooklyn Museum of Art.
Moreover, as US media -- newspapers, television, motion pictures -- consolidate under fewer and fewer owners, can the government intervene to prevent or ameliorate what some would consider dangerous monopolies that threaten free speech? Or would a future Court find such intervention a violation of the First Amendment?
Capital punishment is another pressing subject sure to come before a future Supreme Court. More than 3,600 people are now on death row (mostly sentenced in state courts), with plenty more to come under current standards and procedures. And already the Rehnquist Court has allowed the execution of mentally retarded children, acquiesced in inadequate legal representation, refused federal review of state cases because of minor procedural barriers and excused what the Court -- but not necessarily defendants -- called "harmless error" in the state courts.
Even in the rare cases in which the Court set aside a death penalty, there were always two familiar dissenters--Scalia& Thomas. What might the Court do with more Justices who would follow their lead? A new expansion of capital punishment would be particularly tragic at a time when public opinion may be swinging -- marginally and slowly -- to at least a questioning stance on its fairness and utility.
In the long run, the essentially procedural question--are innocent people being executed?--is likely to carry more weight than the moral and religious objections that so far have failed to move the public or the courts. But it's hard to conceive of a Court shaped by Bush the Younger that would outlaw executions on any grounds.
Even without the fresh infusion of conservative Justices that Bush promises, the Rehnquist Court has virtually eliminated federal habeas corpus review--at a time when state-ordered death penalties (and criminal sentences generally) are more than ever in need of such review. These days, a state judge who knows he or she could be voted off the bench at the next election, and who has an unhealthy respect for the right-wing organizations that exercise formidable power in some jurisdictions, might well hesitate in capital cases to rule in ways that might be criticized as "soft on crime." Yet criminal defendants, even those under death sentence, can no longer be sure of federal review by life-tenured judges who might correct injustices perpetrated by elected state judges.
For more on the Rehnquist Court and what could take place after the election, see the following articles.
And don't forget to ask yourself,
Whom do you want to nominate Justices for the Supreme Court in the next four years?
Tom Wicker was a reporter, Washington correspondent and political columnist for the The New York Times from 1960 until his retirement in 1991.
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