It’s the Courts, Stupid

It is the 221st anniversary of the United States Constitution. Voters not already decided about the upcoming presidential election ought to focus on the consequences this election will have on the federal court system, especially the Supreme Court.

The next president will be likely to have at least two appointments to the high court; and those two will come from the current “liberal” minority four. To preserve the current 5-4 conservative-liberal split, or to move the very conservative five to an imposing seven is a huge and consequential matter. Federal judges are appointed for life, and the recent and next appointees are likely to be sitting and deciding cases for decades. John McCain has been candid and consistent on this point — he will look for justices like the two (Roberts and Alito) whom President Bush appointed. “One more justice,” a McCain enthusiast exclaimed, “and we throw out Roe v. Wade.”

Barack Obama ought to highlight this difference between himself and his opponent. Whether it is the improperly political decisions in cases like Bush v. Gore or the bread-and-butter issues like Lilly Ledbetter’s equal pay denial (written by Justice Alito), the president’s judicial appointments will last beyond his temporary tenure and provide precedents for posterity.

A famous jurisprudential aphorism posits that the law is what the justices say it is. Resorting to constitutional text is only a starting point in most cases. What is an “unreasonable” search and seizure; what is a “cruel and unusual punishment”; what is “due process” or “equal protection”? The next justices will enliven and elucidate the words of our precious Constitution.

The eloquent late Justice Robert Jackson wrote that what the Founding Fathers meant by their constitutional words “must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” We better care — a lot — about who the next Justices are, what they think and what they stand for.

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