Legal scholars predict the outcome on key issues if a U.S. Supreme Court justice steps down in the next four years
The Leadership Conference on Civil Rights is offering palm cards for voters telling them how important this election will be to the future of the Court.
"If public schools in your community decide to adopt an integrated educational program, it may be considered unconstitutional. That's the power of the Supreme Court," the card warns.
On the other side of the spectrum the conservative Judicial Confirmation Network is promoting campaign buttons with photos of Bush Supreme Court picks John Roberts Jr. and Samuel Alito Jr. with a choice of captions: "The Kind of Change I Believe In," or "Thanks W!"
Slogans and warnings aside, however, it is not easy to predict exactly what change the election will bring to Supreme Court doctrine.
Liberals sound the alarm that a President John McCain would change the Court's jurisprudence the most by naming conservatives to fill the seats of the liberal-to-moderate justices viewed as most likely to leave soonest -- John Paul Stevens, Ruth Bader Ginsburg and David Souter. But McCain's impact would be tempered by the likelihood that the Senate, which confirms nominees, will remain in Democratic hands, making it hard for him to name anyone with a strong and visible conservative tilt.
As for a President Barack Obama, he may not shift the Court very much either, because he might be replacing liberal-moderates Stevens, Ginsburg or Souter with liberal-moderate justices like Stephen Breyer, whom he has singled out as a justice whose approach to the Constitution he admires.
To get a fix on what doctrinal change may occur at the Supreme Court in the aftermath of the election, Legal Times asked several legal scholars to discuss what they see as happening in their area of expertise if Stevens leaves the Court in the near term and is replaced either by Obama or McCain. Stevens was singled out because, at 88, he is considered to be the most likely to depart in the next president's first term.
Surprisingly, the scholars see less change on the issue of abortion -- under either candidate as president -- and potentially more change on religious liberty and affirmative action.
Some of these scholars have taken sides in the debate but are respected in their fields. We plan to continue the discussion at The Blog of Legal Times and invite your comments.
AFFIRMATIVE ACTION
Goodwin Liu, assistant professor at UC Berkeley School of Law and co-director of the Chief Justice Earl Warren Institute on Race, Ethnicity, and Diversity:
Affirmative action in higher education got a new lease on life in 2003 when a 5-4 majority of the Supreme Court upheld the use of race as a plus-factor in university admissions to achieve educational diversity. Justice Sandra Day O'Connor's opinion in Grutter v. Bollinger found that the benefits of diversity "are not theoretical but real" and declared that "[e]ffective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized."
But O'Connor also said "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary." With Alito having replaced O'Connor, affirmative action's days may indeed be numbered as the swing vote on this issue now belongs to Justice Anthony Kennedy.
Under a McCain administration, the retirement of Stevens, who joined the Grutter majority, would in all likelihood cement a five-justice majority opposed to affirmative action, not counting Kennedy. A fifth justice in the mold of Roberts or Alito would embolden the conservatives to overrule Grutter and steer the law toward colorblindness.
Under an Obama administration, replacing Stevens with a comparably liberal appointment would leave the swing vote with Kennedy. But there may be a more subtle consequence: Although it is anyone's guess how Kennedy will vote in close cases, Stevens has managed -- through savvy and strategic decisions -- to keep Kennedy from siding with the conservative bloc on some occasions.
Kennedy has never voted to uphold a race-conscious policy, but he agrees that race may be used as a plus-factor to achieve diversity and he declined to endorse colorblindness in the school desegregation case last year. The vitality of Grutter may depend on whether Stevens' successor has the careful instincts and political wisdom necessary to enlist Kennedy in a fragile majority to preserve affirmative action.
ABORTION
Neal Devins, professor at the College of William & Mary's Marshall-Wythe School of Law , and co-author of "The Democratic Constitution":
When it comes to abortion decision-making, it would not matter if Stevens were replaced by a McCain or Obama nominee. Stevens does not hold the key to this issue and, consequently, his departure would have no meaningful impact on the Court's abortion jurisprudence. The fact that Stevens is one of the four Supreme Court justices strongly committed to abortion rights does not matter. What matters is whether his replacement will change the balance of power on the Court. For reasons I will now detail, Stevens' departure would not impact the balance of power on abortion -- even though McCain would try to appoint a justice with pro-life leanings and Obama would appoint a pro-choice justice.
Let me start with Obama. The replacement of Stevens with another pro-choice justice would simply be a wash with no practical impact. The Supreme Court would still recognize abortion rights. The Supreme Court would still grant the state significant authority to regulate abortion rights. Over time, of course, the balance of power on the Court might change during an Obama administration. Were Obama to replace a pro-life justice (Antonin Scalia) or a weak pro-choice justice (Kennedy) with a strong pro-choice justice, the balance of power would shift to the left and the Court would be more scrutinizing of abortion restrictions (assuming, that is, that states enacted significant new restrictions on abortion -- something that may not happen anyway).
The problem for McCain is that with Democrats likely to hold 57 or more Senate seats, the Senate will not likely confirm a justice to the right of Kennedy. Indeed, there is reason to think that Senate Democrats will insist that a McCain nominee deem Roe v. Wade a super-precedent -- so that the Court should not overrule it on stare decisis grounds.
One final comment: There is no reason to think that four Supreme Court justices are willing to overturn Roe v. Wade. Through a lax application of the undue burden test enunciated in Pennsylvania v. Casey, the Court can uphold virtually any regulation that state legislatures seem willing to enact. Consequently, there is little reason for a pragmatic conservative to risk severe national opprobrium (including the election of pro-choice presidents and senators) by overturning Roe.
David Garrow, a professor at the University of Cambridge and author of "Significant Risks: Gonzales v. Carhart and the Future of Abortion Law," in the Supreme Court Review:
Eighteen months have passed since the Supreme Court's last abortion decision -- its 5-4 upholding of the federal Partial-Birth Abortion Ban Act in April 2007 -- and no abortion case is presently on the Court's docket or is swiftly approaching. Yet this lull in litigation has not stopped dozens of partisan commentators -- plus a few journalists who should know better -- from proclaiming that the fate of Roe v. Wade hinges on whether Obama or McCain wins the Nov. 4 presidential election. But they're wrong. It doesn't.
Let's leave aside how the most likely outcome -- an Obama victory coupled with significant Democratic congressional gains -- will remove any prospect of a Roe opponent being nominated or confirmed as a successor to any of the three justices who might voluntarily leave the Court between 2009 and 2012. What's more, the prospect that some 60 Democrats will be sitting in the Senate means that even if McCain pulls off an upset of 1948 proportions, the next potential Alito -- never mind the next Scalia -- will not win Senate confirmation.
But the "who leaves," "who's nominated" game is small beer in comparison to the far more weighty considerations of institutional reputation and legacy that concern real Supreme Court justices while being ignored by partisan true-believers. Judicial self-image and the Court's own self-interest -- not personal views about abortion or the constitutional analysis of Roe and Casey -- are the biggest and indeed virtually insuperable obstacles that stand in the way of any readily visible reversal of Roe.
Future Courts may well, like in 2007, uphold limited or symbolic anti-abortion enactments, but federal constitutional protection for the core of a woman's right to end an unwanted pregnancy will remain the law of the land for all time to come.
CHURCH AND STATE
Douglas Laycock, professor at University of Michigan Law School , and author of "Same-Sex Marriage and Religious Liberty: Emerging Conflicts":
With respect to religious liberty issues, Republicans for a generation have taken a narrow or even hostile view of the establishment clause. Democrats have taken an expansive view. And this disagreement has mattered to nominations and confirmation debates.
There are no guarantees, but a McCain nominee to replace Stevens would probably supply a sixth vote to uphold government funds for religious schools, at least if distributed through mechanisms of private choice (such as vouchers), a sixth vote to permit government-sponsored religious displays (such as nativity scenes and Ten Commandments monuments), and a critical fifth vote to give government a much freer hand to open government events with prayer. An Obama nominee to replace Stevens would probably bring no change on these issues.
Both parties have been divided on the free exercise clause. Religious conservatives condemned the Rehnquist Court's decision to shrink constitutional protection for religious practices that violate some law or regulation, and supported legislation to override that decision; secular conservatives generally supported the Court and opposed the corrective legislation.
Most Democrats have supported free exercise in principle, but Democratic legislators are quick to make exceptions, and much of the Democratic base views free exercise as a right that mostly benefits conservative believers. And free exercise issues have gotten little sustained public attention.
Stevens voted with the conservatives to shrink constitutional protection for free exercise. So a replacement who interprets free exercise narrowly would bring little change; a replacement who interprets free exercise broadly would change a vote. But we do not know if that changed vote would change results, because we still have no clear idea what Justices Roberts, Ginsburg or Clarence Thomas think about free exercise. The Court has not taken enough free exercise cases to enable us to count votes with any confidence.
J. Brent Walker, executive director of the Baptist Joint Committee for Religious Liberty and author of "Church State Matters: Fighting for Religious Liberty in Our Nation's Capital":
Stevens' church-state jurisprudence is unique, favoring a strong establishment clause and a weak free exercise clause. He is the justice most likely to have establishment clause problems with legislative accommodations of religion, and he joined Court conservatives to reduce the protections afforded by the free exercise clause.
The candidates have expressed different understandings of the Constitution. McCain decries what he regards as judicial activism, praising strict construction of the Constitution. While acknowledging the relevance of the Founders' intent, Obama embraces the relevance of contemporary context to inform judicial decisions. He views the Constitution more as a living document.
Both candidates have indicated the importance of accommodating religious practice and respecting religious speech in the public square. McCain's support for vouchers and government funding of religious entities, however, indicates he is less sympathetic to establishment clause values. Obama, on the other hand, has noted establishment clause concerns with these same policies and affirmed the role of the establishment clause in protecting individual religious liberty.
Accordingly, while both would likely appoint a successor with a robust interpretation of the free exercise clause, Obama is more likely to maintain Stevens' bold protection of the establishment clause. McCain is less likely to do so.
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