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It Ain't Yur Fadder's Supreme Court
With just two weeks left in the Supreme Court's term, everything we thought we knew about the Roberts court seems wrong. The question now is: Who plans to tell the presidential candidates?Both Sen. Barack Obama and Sen. John McCain are finally beginning to campaign as though the composition of the Supreme Court actually matters. And that's a good thing, because -- the American public's lack of interest notwithstanding -- the court counts as much as almost every other issue facing the voters in November. Assuming that you work, worship, vote, parent, own property the government might covet or occasionally have sex, the high court will intimately affect your life. This is particularly true now that the average justice is older than Mount Rushmore and the next president may well have two or three new court picks in the space of a few years. But it's hard to generate much public hysteria over nameless, faceless future jurists deciding nameless, faceless future cases. And so the court plods along undisturbed, like the tortoise, while presidential elections zoom by like the hare. But the dialogue about the judiciary now taking place between the two presidential nominees is antiquated. Both McCain and Obama have now taken predictable stands on the Supreme Court of their dreams. In a speech last month, McCain offered a jeremiad Pronunciation: ˌjer-ə-ˈmî-əd, -ˌad Function: noun Etymology: French jérémiade, from Jérémie Jeremiah, from Late Latin Jeremias Date: 1780 : a prolonged lamentation or complaint; also : a cautionary or angry harangue about the evils of "judicial activism," deriding the "common and systematic abuse of our federal courts by the people we entrust with judicial power." Last March, Obama offered up his own judicial ideal: a judge with "enough empathy, enough feeling, for what ordinary people are going through." The main problem: Both McCain and Obama start from the premise that the Supreme Court is tidily balanced among four conservative judicial minimalists, four liberal judicial empaths and the inscrutable Justice Anthony M. Kennedy, swinging away at the center. This is a useful model for trying to stir up public concern about the court's composition, and the decision in at least one blockbuster case -- last Thursday's ruling that the Bush administration is violating the constitutional rights of foreign terrorism suspects being held indefinitely at Guantanamo Bay, Cuba -- did indeed go down along the traditional lines. Still, the current term is rapidly proving the simple conservatives-vs.-liberals construct to be a thing of the past. This court term has revealed a series of patterns that aren't so easy to neatly file away: conservative moderation, moderate conservatism, liberal pragmatism and pragmatic minimalism. And that's just for starters. Court watchers have stood dumbfounded all spring as the high court rejected and renounced the 5 to 4 conservative-liberal splits that seemed to have calcified after last term's bitter divisions. The end of June 2007 saw a full third of the court's cases decided by a 5 to 4 margin; as of this writing, the court has decided just four cases that way this year. At this point last year, Kennedy had cast his vote with the prevailing five justices every single time. But this term has seen a slew of ideology-busting unanimous, 7 to 2, and 6 to 3 decisions, which have not just baffled the experts but also made the usual end-of-term chatter about "activists," "minimalists" and "strict constructionists" sound as old-fashioned as the Bee Gees. Last week, the high court handed down five more unanimous opinions. The week before, it served up a 5 to 4 split decision in which the dissenters included the usually conservative Chief Justice John G. Roberts Jr., his fellow Bush appointee Samuel A. Alito Jr., the moderate Kennedy and the liberal Stephen G. Breyer. We've passed the point of crying "strange bedfellows" at the Supreme Court. As of this month, conservative and liberal justices are routinely sharing a toothbrush. More at link Posted by: Bobby 2008-06-15 |
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