Wisconsin Interest 

The Long Legacy:
Supreme Court Appointments Outlast Presidents

By Rick Esenberg

We all have our ways of deciding on our votes for the Presidency. Some people—perhaps most—vote based on the current status of the economy. This is, I think, largely irrational. Government policy certainly affects the economy, but the connection is tenuous. Deficits, tax rates and various government subsidies are important, but so are things that don’t often make it into our electoral debates. Monetary policy, demographics and globalization are infrequently mentioned, much less discussed in a way that reflects their complexity and real world effects. The notion of a “Clinton” or a “Bush” economy is predicated on the notion of the President behind a curtain in the basement of the White House, ironically resembling the Oz wizard, twisting dials and clicking on a mouse in a way that will “grow” the economy and “create” jobs. While I certainly understand the inclination to believe that the election of Barack Obama or John McCain will result in prosperity or depression, that belief is probably overstated.

Certainly John McCain and Barack Obama differ on matters such as health care, taxes and the federal budget and we ought to care about that. But there are ways to reverse bad choices. If we are dissatisfied with the results, we can elect a new President and a new Congress to reverse bad policy.

Foreign policy and national security are critical issues, although much of the impact of Presidential policy in these areas depends upon execution. Even if you believe that the removal of Saddam Hussein was a good idea, there is no denying that, until recently, the Bush administration mismanaged the aftermath. Of course, it is not as easy to be sanguine about foreign policy and national security because the stakes are higher. Missteps have impacts outside our borders that are difficult to fix. Still, if we are unhappy with an administration’s performance on matters of foreign policy and national security, we can elect a new President.

I want to point to another important issue in selecting a President. One that, in my view, deserves more attention than it gets.

I am old enough to recall the Presidency of Gerald Ford. I remember how he encouraged us all to wear buttons bearing the acronym “WIN” (Whip Inflation Now). I watched reputed clumsiness and dog Liberty being spoofed by a young and unknown actor named Chevy Chase on a new show called Saturday Night Live. [1] I had just graduated from high school when Ford took office. Now I have a grown son and two grandchildren. You would expect that whatever impact the brief Ford administration had on our country would have been eroded by the all those years.

And, for the most part, it has. But, in one very critical way, Gerry Ford is still with us. His nominee to the Supreme Court, John Paul Stevens, remains on the bench and, thirty three years later, Ford’s choice is still influencing our law. In much the same way, the presidencies of Ronald Reagan, George H.W. Bush and Bill Clinton endure.

It's not easy to unring the bell on Supreme Court appointments. Once confirmed, a Justice serves for life, and apparently appointment to the high court is conducive to one’s health. Justice Stevens—now 88 years old—has served for 33 years. The late Chief Justice Rehnquist served for 34. Both Justices Scalia and Kennedy have passed their twentieth anniversary on the Court and, during the term of the next President, Justices Souter and Thomas will, God willing, celebrate theirs.

The next President may have an extraordinary opportunity for appointments to the Court. At the beginning of the 2009-10 term, six of the nine current Justices will be at least seventy years old. Assuming that the next administration serves for eight years, it is possible—even likely—that the next President will appoint a majority to the Court.

Who sits on the Court will matter. In the last eight years, the Court has, on multiple occasions, rejected the Bush administration’s preferred policy with respect to enemy detainees. [2]   It has struck down or significantly modified important aspects of the McCain-Feingold campaign finance legislation. [3] It has struck down a municipal ban on hand guns [4] and has upheld a municipal seizure of property for a private use. [5] It first struck down and then upheld bans on partial birth abortion. [6] It has decreed the nature of affirmative action plans that may be adopted by public universities [7]   and held that public schools may not bus students for the sole purpose of racial balance. [8] It has upheld and struck down death penalty statutes. [9]

The court has, arguably, created a constitutional right to sexual intimacy that may come to have profound implications for the future. [10]   It has adjudicated conflicts between a state and the administration on the scope of treaty obligations. [11] It has permitted vouchers to be used at religious schools. [12] It has told the EPA that it must, subject to certain limitations, regulate greenhouse gases [13] and has told the Attorney General that he may not use federal drug law to interfere with state law permitting physician assisted suicide. [14]

In 2000, it decided the Presidential election. [15]

Who is selected to serve on the Court is profoundly important.

The Court is currently in equipoise as reflected by a number of 5-4 decisions in a variety of critical constitutional areas. Simple labels often suggest a politicized approach to jurisprudence that does not quite capture the distinctions among the justices and masks important differences among justices in the same faction. Nevertheless, it is generally accurate to say that the Court is divided into two opposing camps of four justices. One group, consisting of Chief Justice John Roberts and Justices Scalia, Thomas and Alito, tend toward a mode of interpretation that places more emphasis on the Constitutional text and its original public meaning. None of these Justices merely import their political leanings into their decision making, although ambiguity in the text and its history sometimes provide interpretive leeway. In exercising this limited discretion, the policy judgments of the Justices are more likely to be similar to those that we associate with conservatives. This group tends to act in a way that limits judicial discretion, defers to the executive and is more deferential to the states.

Another faction, consisting of Justices Stevens, Souter, Ginsburg and Breyer, follow an interpretive method that is less constrained by the text and its history, emphasizing what they regard as underlying constitutional purposes and principles. Although it would be unfair to say that these Justices merely constitutionalize their political preferences, in exercising this broader discretion, they are more likely to make assumptions about policy that are consistent with those we expect from political liberals and are less reluctant to exercise judicial power.

As most of us have come to know, this leaves Anthony Kennedy as one of the most powerful men in America. [16] While even a brief elaboration on Justice Kennedy’s jurisprudence is well beyond the scope of this article, Justice Kennedy combines a somewhat greater commitment to the exercise of judicial power with a more flexible approach to constitutional text and history. To the extent they are applicable; his policy judgments are less readily characterized. [17]

It seems likely then that the next President will have an opportunity to change the philosophical balance on this closely divided Court and will change it in radically different ways. Barack Obama and Joe Biden both voted against the confirmation of Chief Justice John Roberts and Justice Samuel Alito. John McCain voted for both. Senator Obama identified Clarence Thomas as a Justice that he would not have nominated and made clear that he sees the Court as an instrument for the transformation of society and for the redressing of what are seen as social imbalances:

We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old—and that's the criterion by which I'll be selecting my judges." [18]

Of course, empathy is a fine virtue, but its role in resolving difficult questions of law is arguably limited. While it may be, in light of other factors, pertinent in choosing among equally plausible interpretations of a text, it can hardly be a privileged principle of constitutional adjudication. The imposition of a Justice’s view of what may best serve the dispossessed threatens to disturb the expression of the popular will through the democratic branches, may frustrate the evenhanded application of the rule of law and interferes with the policies of branches of government who have greater institutional capacity to make such judgments.

To the extent that Joe Biden will play a role in the nomination process, the picture is unchanged. He served as Chairman of the Judiciary Committee, and led the infamous and ideologically charged fight against the nomination of Judge Robert Bork and presided over the hotly contested confirmation hearings on the nomination of Clarence Thomas. He also voted against Chief Justice Roberts and Justice Alito.

On the other hand, John McCain voted to confirm Roberts and Alito and has identified them as model nominees. He has said that his nominees will have a “proven commitment to judicial restraint” and that he would not have nominated Justices Stevens, Souter, Ginsburg or Breyer. [19] It would seem, then, that the two candidates are likely to take very different approaches to nominations to the Court and to the lower federal bench.

What is likely to be at stake? Much of the conflict over nominations to the Court has revolved around the status of Roe v. Wade, [20] the 1973 decision finding, with unclear warrant in the Constitutional text, a fundamental right to choose whether to have an abortion. Roe is, in many respects, the ur-case in the modern battle over judicial activism and restraint. It is, to a large degree, one’s position on Roe that places you in one camp or the other.

Roe is probably not in as much jeopardy as its defenders claim. On the current Court, five justices have voted to uphold Roe. It is unclear, however, whether the remaining four would vote to overturn it. Justices Scalia and Thomas have made clear that they believe Roe is bad law and should be overruled but Chief Justice Roberts and Justice Alito are not on record. Although it is difficult to imagine the latter two joining Roe in the first instance, both—and Chief Justice Roberts in particular—have shown a certain tendency to incrementalism that may make them less likely to join in grand transformations of the law.

But there are a variety of areas in which the Court’s current doctrine is only tenuously established. The Court’s decision in Gonzales v. Carhart, upholding a Congressional ban on partial birth abortion, was decided on a 5-4 vote. Even if the issue of partial birth abortion is not revisited, a change in the composition of the Court could materially affect the way in which the Court views future regulation of abortion.

Beyond the continued viability of Roe, the Court is likely to face further efforts to expand the right of privacy upon which it is based. In Lawrence v. Texas, a five justice majority—Justices Stevens, Souter, Breyer and Ginsburg joined by Justice Kennedy—found that “intimate, adult consensual conduct” was constitutionally protected. The scope of that right and its potential expansion to other areas of personal decision-making will certainly depend on the future composition of the Court.

Last term’s decision in Heller v. District of Columbia finding that the Second Amendment prohibited the District of Columbia’s handgun ban left several critical questions unanswered. Is the Second Amendment applicable to the states and, if it is, what would is the proper standard for the review of the firearm regulations? The Court was sharply divided over the DC ban and the way in which these questions are answered will depend heavily on who answers them.

In the area of free speech, there has been a sharp division between justices willing to allow more substantial regulation of political speech in an attempt to “enhance” the democratic process and those who adhere to a more strict application to the constitutional command against the infringement of free speech. Ironically, it is the “conservative/restraintist” justices on the Court, joining with Justice Kennedy, who have substantially restricted the impact of the McCain-Feingold Act. In Wisconsin Right to Life v. Federal Election Commission, that majority rejected the application of restrictions on election-time independent advertising to issue advocacy. In Davis v. FEC, it invalidated the so-called “millionaire’s amendment,” which raised contribution limits for candidates facing opponents who spend more than a specified amount of their own funds on the campaign.

Further development of constitutional limitations on the way in which government may restrict advocacy in the interest of “leveling the playing field” may have profound implications for the future of public financing of elections. If government cannot restrict independent expenditures, then these laws may be written (and, in some states, have been written) to provide additional public funds to candidates facing such independent expenditures. But if Davis means that government may not act to level the playing field, such laws may be unconstitutional. How future Justices treat efforts to “balance” political discourse may also be critical in assessing the constitutionality of any return to the Fairness Doctrine requiring broadcast stations to provide “equal time” to opposing political views.

In the area of the religion clause—the constitutional guarantee of the right to the free exercise of religion and the prohibition of government establishments of religion—the Court has moved toward a more permissive view of the inclusion of religion in programs and forums sponsored by the government. It has, for example, upheld the provision of vouchers for use in religious schools and has held that, when government provides a forum for the expression of differing points of use or permits its facilities to be used by the public, it may not discriminate against otherwise pertinent religious speech or uses. [21] But most of these cases have been hotly contested 5-4 decisions with Justices Stevens, Souter, Ginsburg and Breyer generally urging a more thoroughgoing separation of state and religion. Changing the composition of the Court may have profound implications for the role of religion in our public life.

As noted at the outset, there have been a series of cases considering the constitutionality of various Bush administration policies in the war on terror, including, in particular, its treatment of enemy detainees. These cases have been sharply divided as well (although not always by a simple 5-4 division). Given the nature of the threat posed by Islamic terror—i.e., a conflict with no clear temporal or geographic boundaries fought against a largely clandestine enemy—it is likely to raise additional difficult issues, such as the appropriate constitutional role of the FISA court and the constitutional limitations, if any, on the electronic surveillance of international communications.

I am certainly not urging that people vote solely on the basis of a candidate’s potential nominations to the United States Supreme Court and the lower federal bench. But it is a vitally important question and one on which Senators Obama and McCain differ profoundly.

I have no idea where I’ll be 33 years from now, but I hope that, wherever I am, I am not reflecting on the continuing influence of the Obama Court. 

Rick Esenberg is a Visiting Assistant Professor at the Marquette University Law School.

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