McCain's Court: Change We Don't Need

There has been much debate about whether Sen. John McCain is a candidate of change. But in one area, McCain is unquestionably a reformer. He would almost certainly make fundamental changes in the direction of the U.S. Supreme Court.

McCain has said that, should he be president, Chief Justice John Roberts and Justice Samuel Alito "would serve as the model for my own nominees." He regularly attacks what he calls "activist judging," and he described a recent ruling vindicating the right to habeas corpus as "one of the worst decisions in the history of this country." McCain has repeatedly said that Roe v. Wade was wrongly decided and should be overruled.

If McCain is elected, change would clearly be coming to the U.S. Supreme Court. And in constitutional law, the Republican presidential nominee is anything but conservative. Once skeptical of the idea that the court should overrule Roe v. Wade, he now invokes the clichés and code words of the extreme right. His votes have matched his words, for he has been a proud and enthusiastic supporter of President George W. Bush's most extreme appointees to the courts of appeals.

Recently McCain complained of "the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges."

In his view, the "system of checks and balances rarely disappoints," but "there is one great exception in our day": the Supreme Court. McCain aims to eliminate that exception. It is more than mere speculation to suggest that with judicial appointments, McCain may well follow the extreme right-wing of his party.

The court is already dominated by Republican appointees, and in the last 20 years, it has shifted dramatically to the right. The next president is expected to be able to appoint at least one -- and possibly as many as three -- new members. Even a single appointment would likely shift constitutional law in major ways.

The right to choose remains sharply contested within the Supreme Court -- and the Republican Party and the pro-life movement have long sought to eliminate that right. The McCain-Palin ticket plans first to "return the abortion question to the individual states" and then "to end abortion at the state level."

We might well return to a period in which states threatened to subject pregnant women, and their doctors, with jail sentences for exercising the right to choose. Alaska Gov. Sarah Palin opposes abortion even in cases of rape and incest, and there is no doubt that many states would attempt to enact that belief into law.

But abortion is only the tip of the iceberg.

Consider McCain's astounding statement that the court's recent vindication of the right to habeas corpus is among "the worst decisions" in the nation's history. (As bad as Dred Scott v. Sandford, entrenching slavery? As bad as Lochner v. New York, striking down maximum hour laws? As bad as Plessy v. Ferguson, upholding racial segregation?) McCain's favorite justices -- Roberts and Alito -- have consistently sided with the Bush administration in cases involving the constitutional authority of the president. Under a President McCain, their dissenting views might well become the law of the land.

The Supreme Court has already struck down provisions of the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Violence Against Women Act. A McCain court would go further. Some Republican appointees have raised constitutional doubts about provisions of the Endangered Species Act, the Clean Air Act and the Clean Water Act. With new members on the court, important environmental laws would face fresh constitutional scrutiny.

In the last decade, Republican appointees to the bench have led a constitutional attack on affirmative-action programs. But in some areas, like education, for example, government is allowed to engage in a modest degree of affirmative action. With an appointment or two by a McCain administration, affirmative-action programs might be banned entirely.

Does the Constitution allow Congress to enact campaign-finance reform? McCain clearly thinks so. But his favorite justices -- Roberts and Alito -- have severe doubts. Campaign-finance proposals already face acute constitutional doubts. With one or two McCain appointments, most such proposals may well become constitutionally unthinkable.

All this offers merely a glimpse. Some Republican appointees want to restrict citizens' rights of access to federal courts, to give commercial advertising the same level of protection as political dissent, to provide new protection to property rights (at the expense of environmental law), to narrow the court's decisions involving sex discrimination, and much more.

There is a major irony here. McCain calls for "strict construction" and "judicial restraint," and he rejects "legislating from the bench." But in countless areas, conservative appointees avoid strict construction, and they are all too willing to legislative from the bench.

There is a close connection between the constitutional views of McCain's his preferred judges and the political views of the extreme right-wing of the GOP. To say the least, it would be a startling coincidence if the best interpretation of the Constitution turned out, fairly consistently, to entrench the political views of one or another side.

When McCain calls for "strict construction" and "judicial restraint" while opposing "judicial legislation," no one should be fooled. Is it "restrained" for justices to invalidate campaign-finance laws and provisions of the Violence Against Women Act? Is it "strict construction" to strike down affirmative-action programs, to ban Congress from allowing citizens to sue in federal court, to give unprecedented protection to property rights?

When McCain speaks of strict construction and restraint, he is speaking in code. He is signaling his desire to produce large-scale change in the direction favored by the far right -- for starters, and above all, by overruling Roe v. Wade.

It is not at all clear that a McCain administration would seek to reorient current practices in the domestic arena or in foreign policy. But there is no doubt that in constitutional law, McCain favors fundamental change.

The question remains: Is this really the change we need?

Originally published in the Washington Independent

Cass R. Sunstein is Felix Frankfurter professor of law at Harvard Law School. He will be the Harry Kalven Visiting Professor at University of Chicago Law School in January 2009. His most recent book, which he co-wrote with Richard Thaler, is "Nudge: Improving Decisions about Health, Wealth, and Happiness." His books include "Are Judges Political? An Empirical Analysis of the Federal Judiciary" and "The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever."

Comments

[Nicholas Nugent]

While Professor Sunstein is certainly correct in his basic (and far from novel) thesis that McCain would appoint more conservative jurists, whereas Obama would appoint more liberal ones, he seems, in my opinion to engage in quite a bit of intellectual dishonesty in how he attempts to scare readers into believing such such appointees would be extreme right-wingers, for the reasons set forth here: http://nugentslaw.wordpress.com/2008/09/17/cass-sunsteins-deceptive-editorial/.

[fuzzywuzzy6]

Consider the possibility of Mukasey being appointed to the supreme court as a reward for rubber stamping all of Cheney's requests. He was dishonest and evasive before the Senate nominating committee about his views on torture and how he would administer the office he now holds. He supports the admin's intrusions into personal privacy and protects the admin against any attempt at investigation by a largely do-thing roll-over Congress.

Consider the possibility of people like Alberto Gonzales and his buds from Liberty College being appointed to the Supreme Court. They are ill-educated ideologues who don't understand our history or understand our justice system. And they don't care about their ignorance, only enforcing their values on the rest of the country and protecting the admin.

Consider the possibility of all the ill-educated redneck justices from all over the country being appointed to the supreme court. Bigots who don't respect the right to religious freedom, the right to privacy at home or in the bedroom, the right to free speech, and the right of women to be left alone.

There are conservative justices out there who are truly conservative, in the sense of enforcing legal precedent, and not wanting to overturn 50, 70 or 1200 years of court decisions and common law. But they won't be put on the supreme court.

As for me, I hope the liberal justices and Souter stay on the Supreme Court as long as they live.

[deecee22]

STRICT CONSTRUCTION CODES= REPEAL
Roe v Wade =Pro-Choice- overturn abortion choice
Dred Scott v Sandford =Slave and their decendents have no civil, social or political rights and cannot be citizens of the United States. (that would take care of voting rights act of 1964)
Plessy v Ferguson =Return to racial segregation of schools and public building

McCain and the Far Radical Republicans want a Supreme court that would return us to 1850. PERIOD
A Supreme court who selected the worst President in America History. (Gore v Bush) ENOUGH!

[CrittersRTasty]

Do you really believe all that?

[chrisbee13]

based on McCain's stance (activist judges are those that "legislate" rather than interpret), than Plessy v. Ferguson, which said that separate can be equal and led to decades of Jim Crowe would be a good decision because it was a cut and dry interpretation of the constitution.

Based on McCain's stance, the bad ruling would be Brown v. Board of Education that said separate is not equal. I've read the decision, nowhere in there does it mention the constitution saying that. The decision is based on morals and the sense of what is right -- and it was a unanimous decision.

Roe v. Wade is not the right to an abortion but the right to privacy and the right to make private decisions about your body and your life without the government stepping in. That decision (which i've also read, go law school!) has more legal standing and precedent in the court -- based on privacy rights -- than Brown v. Board.

So, McCain, which is the first to go? Roe or Brown? Maybe Whoopi's question about going back to slavery wasn't that far-fetched.

[RepugsOut08]

McCain just wants to be president, and if the Neocons can make that happen, fine. In this election, however, we need to be asking what are Sarah Palin's views on Supreme Court nominations, as she may very well be the person who nominates them. This is a very dangerous game McCain is playing with this country's future.
Everytime I ask myself how the Republicans can call themselves the only party that cares about freedom, patriotism and the flag, considering their poor record of the last eight years, I remember Samuel Johnson's famous quote;
"Patriotism is the last refuge of a scoundrel."

[thedirtman]

Wasn't that Samuel Johnson the Tory that emigrated back to England during the Revolution? It goes to show that conservatives didn't always stoop to deception to maintain power.

[fredlonsdale]

I think he was quoting Boswell's Johnson. Here is a link to a page that lists a few of his quotes on Patriotis:

http://www.samueljohnson.com/patrioti.html

[Lemeritus]

Professor Sunstein, I believe it was your opinion that Democrats should avoid replicating retributive efforts like the impeachment of President Clinton, or even the 'slight appearance' of it because it would risk a 'cycle' of criminalizing public service. Consequently, both the current administration and the aspiring Republican candidate continue to enjoy a legitimacy that makes future appointments to the Supreme Court both possible and frightening.

[fuzzywuzzy6]

I very strongly agree with your comment. But I will go further: the repubs used the clinton impeachment to prevent effective policy changes and legislation from taking effect. The current dems are afraid that if they go after bush & buds for their very real crimes against the people and the constitution of the u.s., not to mention all the war crimes, that the GOP will tie up the next few democratic admins as payback. They are moral cowards. Still, it is far better to have the dems in power than the GOP.

The clinton impeachment proceedings weren't about his private conduct but an effective way of preventing the dems from following thru on their program initiatives. Maybe we should think about changing to a parliamentary system of govt, since the gop has devastated our constitution so badly in terms of checks and balances.

[darthdarcy]

McCain if he becomes President, will have his picks for the Supreme Court made by, and from the Federalist Society..!

In reality the Federalist Society already is the majority on the Court but Kennedy is a more moderate member of this dangerous cabal of Tories, who seek to dismantle our very system of government and the three equal branches while also establishing an authoritarian dictatorial Unitary corporatism..

There is very little, if anything that comes out of a Republican's mouth that is anything other than a disingenuous lie, or obfuscation meant to divide and mislead the American people..!

[retus]

Professor Sunstein;

Great article and very frightening. The alarmist rhetoric following the recent "habeas corpus" ruling compelled me to write a blog "WWJD" (What would Jefferson Do? - http://iplicensing.net/2008/06/13/wwjd/). I'm not a constitutional law professor, but I have a theory that the "base" is taking the long term view with the goal of tilting the balance of power in the Supreme Court, and then beginning to impose its agenda in multiple areas; Roe v Wade is an obvious one, but Intelligent Design in science classes, stem cell research, etc.

George Bush, McCain, Sarah Palin are all just means to an end, with the end being a true evangelical theocracy in this country.

Thomas Jefferson is rolling over in his grave.

That's my .02!

Martin Suter

[MeiLing]

I wish he'd rise up out of that grave and haunt the likes of McCain/Palin into theirs!

[CrittersRTasty]

Not sure how to break this to you, but an O.bama staffed SCOTUS is one of the primary reasons I will vote for Mc.Cain/Pa.lin

[athenasword]

Your basis and explaination of how you reached this decision?

[CrittersRTasty]

Look no further than the obvious; As in the recent overturn of the D.C. Gun Ban.

Yes, I'm still bitterly clinging to my guns.

[viflyer]

You do understand that people like you that have been brainwashed into thinking that Bush appointed strict constructionists are FOOLS. He appointed CORPORATISTS. Alito and Roberts support the rule of corporaitons. To insulate them against ANY oversite and give them complete control over the people and the economy.

And you will NEVER figure it out even though all their decisions involving corporations support my point.

Wake up, do some reasearch, use your brain!!!