McCain Win Could Mean A "Fundamental Shift" To A Consistently Conservative Supreme Court

For much of its term, the Supreme Court muted last year's noisy dissents, warmed to Chief Justice John G. Roberts Jr.'s vision of narrow, incremental decisions and continued a slow but hardly steady move to the right.

But as justices finished their work last week, two overarching truths about the court remained unchanged: It is sharply divided ideologically on some of the most fundamental constitutional questions, and the coming presidential election will determine its future path.

A victory by the presumptive Democratic nominee, Barack Obama, would probably mean preserving the uneasy but roughly balanced status quo, since the justices who are considered most likely to retire are liberal. A win for his Republican counterpart, John McCain, could mean a fundamental shift to a consistently conservative majority ready to take on past court rulings on abortion rights, affirmative action and other issues important to the right.

"If there's one thing you can see about this court, it is that it still sits on a knife's edge," said Jeffrey L. Fisher, a Stanford University law professor who argued three cases before the justices this year.

That was readily apparent in the court's closing days, as it whipsawed from left to right and back again on the constitutional rights of terrorism suspects, individual gun ownership and the ability of government to restrict it, and the increasingly narrow view of who is eligible for the death penalty.

Each case pitted the court's four consistent conservatives against its four slightly less consistent liberals, with Justice Anthony M. Kennedy returning to his role of last term as the deciding vote.

"The blockbuster cases, the really big cases, have now brought into very sharp focus how closely divided the court is on the really large and philosophically charged issues before the court," said Charles J. Cooper, a Washington lawyer who was an official in President Ronald Reagan's office of legal counsel.

Read the whole story here.

Comments

[Janus]

PART TWO.......ADDRESSED TO JEERSFORFEARS

With all due respect, you seem to be among the many who treat the Constitution as akin to viewing a cake recipe: If the subject is not mentioned nor addressed in plain text then there is nothing to consider.. At the same time, however, you agree that the Constitution is a living document that evolves over time. So, to use an example, what is your opinion about those cases and their progeny of long standing grounded in the liberty aspect of the due process clause in the Fourteenth Amendment ?

[totaldisbelief]

I think the "fundamental shift" would be stepping closer to the drain we're going down.

[kidshare]

Yep...China sucks

[darker]

NO, NO, NO!

THAT was a typo!

It's really "FUNDAMENTAL SH*T" on the Court.
Tons and tons of it, too.
Enjoy.

[robodweeb]

I can't seem to find a single law written by a court.

[Totto]

Less Opus Dei on the Court, more Opus One.

[darthdarcy]

McCain doesn't want "Conservative" Judges he wants, Radical Right Wing Authoritarian Judges..!

If you have a conservative interpretation of the Constitution then the rights of the individual is paramount...

The Constitution is not a conservative document it was and still is in many ways the most liberal document ever written, and at it's time the most Liberal ever without equal, all based upon a radical idea...that men could rule themselves..and the individual's rights were paramount..

These judges are simply right wing totalitarian authoritarian Judges who take every advantage to strip away the rights and voice of the masses the 2000 Gore V Bush case showed that..among so many others...

[kidshare]

I hope none of those totalitarian, authoritarian, conservative guns aren't ever pointed at you.

[kidshare]

The Supreme Court, by nature of its very existence, SHOULD be conservative. Protect the constitution at all cost, bottom line. They're not perfect by any means, but they made one right by striking out the DC gun ban. There may be hope for this country yet.

[Krikkit]

If McLame wins, I'm "fundamentally shifting" my arse to another country, because it will prove that America is no longer a democracy and the neocons have rigged the system.

No one in their right mind would vote for this fraud, especially after 8 years of damage done by Bush and his neocon warmongering profiteers.

[Southrnbelle]

What I would love to see - After Obama is elected, the Congress has an OVERWHELMING majority and Ruth Ginsberg resigns from the Supreme Court - Hillary is appointed to replace her!!!

Oh the joy of watching Linbaugh's, Coulter's, Hannity's, O'Lielly's, Savage's, Beck's, Rove's and all the other hate mongers who have reuined this country, HEADS EXPLODE!!!!!!!!!!!!!!

YES!!!!!!!!!!!!

[jeersforfears]

You are very childish. Huffington Post is evolving into a place for the serious exchange of ideas.

[andvoodoo2]

Then you and I are reading a very different HuffPo.

[edva]

Yes, if the GOP by some evil gains further control of the Court, they will retain control of the country,
despite losing the Congress and the White House. They know this, and are desparate to do so.

[awcbuddy8]

The liberals' march to destroy democracy and establish a fascist America. Origins started right here on the blogosphere.

[Krikkit]

Blow me. On second thought, never mind. No way to tell how many trists you may have had in men's bathrooms, you greedy old pervert.

[Janus]

Soon you will awaken, like a host of other vacuous Dupes already have awakened, to the fact that we are already in a Fascist Plutocracy complete with Gilded Age II, thanks to your voting preferences.

[riverhouse]

You clearly don't know what fascism is. Repeat after me: fascism is the right wing. Fascism is a totalitarian government focused on aggressive nationalism, militarism, and discrimination against minorities. A fascist is an extreme right winger. Fascism is the opposite of liberalism..

[BigBagel]

I've always been pro handgun control. However seeing our government in action the last few years I've changed my mind. I don't trust them. Liberal or conservative, Republican or Democrat, its about increased power for politicians. Its better that they lie in their beds at night and fear us. With all those firearms in the hands of the citizenry they might end up like Ceausescu or Mussolini if they really step out of line. Its the final check and balance.

[Totto]

Confusius say: "People in wooden houses ought not feel secure from police with guns"

[Janus]

Downstream JEERSFORFEARS posted this:

""Conservative" judges believe in the Constitution as written - they're called originalists - and can easily see through the liberal, or should I say "progressive" attempts, at changing the constitution to fit their current ideology. There is no confusing language, like the ridiculous attempts to claim that the 2nd Amendment is a collective freedom as opposed to an individual one. People - academics and other elitists - have a very different version of what America should be, and they're actively pursuing their ends. Having a 9 person SCOTUS would suit their needs quite nicely, in getting around the legislative and executive branches of government.

The progressive vision of America is pure poison."

*****************************************************************

How do you with specificity determine in the context of Constitutional jurisprudential analysis whether a judge or justice is following the law or legislating from the bench?

[Totto]

The United States Consitution is a living document, the Supreme Court Justices (5 ultra-conservative and 4 centrist) are "politicians in robes" (Bush v. Gore) and you, Janus, are backward looking. The current "elitists" are, in fact, the neo-cons that have dominated our recent history: Cheney, Addington, Norquist, Wolfowitz, Pearl, etc., and you, Janus, are a blunderbuss in a time of lethal automatics.

[Totto]

The United States Constitution is a living document, the U.S. Supreme Court is 5 "activist" ultra-conservatives (Bush v. Gore), 4 centrists who are "politicians" in robes, and the "elitists" are, in fact, the neo-cons like Cheney, Addington, Wolfowitz, Pearl, Norquist, etc. who "know" what's best for us. Janus didn't only look backward. A blunderbuss in a world of lethal automatics.

[Janus]

You clearly do not know for what purpose I posed the question to jeersforfears, who, judging from his/her other posts and the posts of others with like opinions, I submit would not agree with your view that the Constitution is a living document. Instead they believe that it can only be legitimately interpreted by the original understanding of the framers, by its text, and by the intent of the framers in consideration of their own society and culture in which they lived .

Today's opponents of the living document thesis argue that the (real) Constitution is in Exile (and needs to be returned to us). These opponents decry what they see as judicial activism which they say simply means not following law but making it up---legislating from the bench. However, the vast number of those opponents fail to explain how they recognize it. Rather, they just leave this "slogan" in place with nothing more, suggesting that they were just parroting some one else.


It so happens that I agree that the Constitution is a living document, evolving over time as our society and culture mature and needs change.

[jeersforfears]

Downstream answer to JANUS:

I'm saying that if a judge fundamentally changes what is written in the Constitution, or creates a new law, it would be unconstitutional. Judges are supposed to interpret according to the original Constitution. Of course things can be changed. Look at prohibition. The Founding Fathers loved to booze it up; they would have turned over in their graves had they known the country outlawed liquor. But prohibition was the will of the people and was made an amendment. Then, lo and behold, it was the will of the people to reverse prohibition.

My point is: change the Constitution as is needed for changing times, but do it RIGHT! That means through amendments voted on by state legislatures, which reflect the will of all the people.

9 judges on SCOTUS SHOULD NOT (morally, ethically, or constitutionally, damn it!) have the power to make a fundamental changes to the Constitution.

[Janus]

PART ONE

"I'm saying that if a judge fundamentally changes what is written in the Constitution, or creates a new law, it would be unconstitutional. "


No judge or justice changes fundamentally or otherwise what is written in the Constitution or for that matter in a statute under review. They decide cases and controversies before them. The early Marshall Court held that the purpose and function of the Judicial Department is to say what the law is. In the process, if a statute is held to be unconstitutional by the U.S. Supreme Court or by the highest State Court as ultra vires under their respective constitutions the defect can be remedied by further action of the Congress or of the legislature of the State. If however the statute violates a fundemental Constitutional right it can only be remedied by Constitutional amendment. The process of judicial review rests on the way in which those Courts interpret the Constitution where required. Ordinarily, those who lose react strongly by responding that the Court is "making up law or ignoring precedent or imposing their personal views" in the decision. The method of interpretation under that review is the source of the never-ending arguments about the Court as you and I recognize.

[nirek]

This story is scary to me and a good reason to VOTE Dem. NO MORE BUSH TERMS !

[Egalitare]

Just as the public might just be starting to re-think the merits of unbridled capitalism, a solidly anti-populist 6-3 bent to the Supreme Court for 12-15 years may stall any effort toward allowing our country to swing away from the 21st century version of the Gilded Age - just as the Supreme Court fought FDR's New Deal all during the 30s.

This time, the rest of the world won't be waiting for us to lead the world's commerce into the next phase of prosperity: the EU and the Asian economic engines will have soldiered on without us, leaving us relatively and permantly diminished as an economic world power. The implications go way beyond reproductive and gun rights: they will affect the quality of life of the vast majority of us.

[jeersforfears]

If the original Constitution is "an outdated, restrictive collection of 'period' phobias'" as danj239 asserted earlier, fine. Change it the proper way, by having the state legislatures ratify new amendments. That represents the will of the people, not a 9 member group of loose canons called SCOTUS. The current ruling merely upheld the 2nd Amendment; it did not change anything.

Ruth Bader Ginsburg, an avowed liberal, states she is in favor of Roe v. Wade and would rule in favor of keeping it if any cases come to SCOTUS while she's there. But she also says she disagrees with how it came to be: A 9 member body of judges creating new law, instead of the state legislatures being allowed to choose for themselves.

One last point: More than 70% of the American public favors individual rights to own firearms.

[ftprairiedog]

Do you mean that those blacked robed shysters who gave us the little deserter and lying war criminal arn't conservative enough?