Presidential Politics and The Future Court
posted by Thomas Crocker
At last night’s Faith Forum with Rev. Warren, we got another look at the two candidates’ views of the Supreme Court. Asked which sitting Supreme Court justice they wouldn’t have appointed, we got mostly predictable answers, though not entirely so.
Sen. McCain named four Justices. He named Justices Ginsburg, Breyer, Souter, and Stevens – the four who often vote together, and the press designates as the “liberal wing” of the Court. He claimed that nominations to the Court “should be based on the criteria of proven record of strictly adhering to the Constitution of the United States of America and not legislating from the Bench. Some of the worst damage has been done by legislating from the bench. And by the way, Justices Alito and Roberts are two of my most recent favorites.”
Sen. Obama named three Justices. He first named Justice Thomas, referring not just to disagreement with his Constitutional interpretation, but also to his relative inexperience at the time of his nomination. He added Justice Scalia on grounds of constitutional disagreement as well. Most interesting is his explanation for not nominating Roberts (whom he voted against). Sen. Obama stated: “One of the most important jobs of the Supreme Court is to guard against the encroachment of the executive branch on the power of the other branches. I think he has been a little bit too willing or eager to give an administration, whether mine or George Bush’s, more power than the Constitution originally intended.” This was certainly more thoughtful than merely repeating the standard cant about strict adherence. What are the implications of these contrasting views?
Obama’s response clearly suggests that he does not accept the view of Supreme Court deference view that some in the academy and on the Court have expounded. Roughly, the deferential view is that in times of heightened security threats, the courts should defer to executive branch decisions about security policy (for my development and criticism of this view, see here). By contrast, Obama’s statement indicates a reliance on a robust Court that can operate to check encroachments by the executive. If we posit that any executive will naturally tend to test the limits of its power from time to time, then a deferential view will lead to imbalance of powers. Moreover, there is reason to think that the executive might appropriately rely on the Court to check its excess. The Supreme Court has repeatedly discouraged other branches from making independent assessments of their constitutional powers, declaring that the Court alone decides who has the power to protect which constitutional rights (I’m thinking of cases like Boerne). The Court has also at times been willing to defer to the executive on matters of foreign affairs and national security. If the executive does not make a genuine independent assessment of constitutional limits, relying instead on the Court to play its institutional role to check excess, then when the Court defers, the consequence will be an imbalance of powers. An executive that relies on the Court to play a checking function may push the limits of executive powers far too far with a deferential Court. Obama does not promise that his administration will not test the limits of executive power, but he does suggest that he expects to confront a Court willing to fulfill its institutional role in upholding those limits. This institutional role is one the Chief Justice has not been willing to play (though it will be interesting to see whether or how such deference might change over time). So far his view has remained in a four vote minority.
As for McCain’s position, it is useful to recall that every Supreme Court nominee since 1968 has (arguably?) moved the Court towards the right on the political spectrum, except perhaps Justice Ginsburg’s replacement of Justice White (Cass Sunstein has an interesting post here about the development of the two “wings”). So when McCain said he would not have appointed Justices Souter and Stevens (appointed by Republican presidents), and would not have appointed a moderate pragmatist like Justice Breyer, he shares with the current Administration a more extreme view of what an acceptable Justice’s jurisprudence should look like. This view should give us all pause. As McCain at the Forum was quick to point out, there will likely be vacancies over the next several years, and it is not just the overturning of one or two cases that particularly rile some organized political groups that are at stake. A couple more Justices like Thomas would likely yield rulings allowing States to establish religion, rulings that begin to limit Congress’s commerce power to pre-New Deal parameters, and rulings that take seriously the notion of the “unitary executive,” a notion repeated by the Bush Administration in signing statements – among other dramatic changes. The Constitution would become a very different governing document (the abstract notion of a Constitution in exile might become real).
Given the real differences in constitutional vision that each of the candidates have (more on vision in general here), it is disappointing that the radical nature of McCain’s vision is not articulated for the public, relying as he does on the meaningless old saw of “strict construction.” By contrast, Obama’s reflections on the need for the Supreme Court to check the executive, even if that executive were himself, are particularly refreshing; and, I might add, right.
August 17, 2008 at 3:26 pm
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Responses (18)
Joe Miller - August 17, 2008 at 4:33 pm
I found Sen. McCain’s judiciary remarks sadly familiar and wretched. Even Sen. Obama’s comments left me ever-so-slightly bummed, however, because his critique of Justice Thomas might suggest that he would be disinclined to nominate someone without substantial lower court experience. That’s unfortunate, to me, because I think the Court needs an infusion of gubernatorial, senatorial, or ambassadorial experience. Perhaps he simply meant that Justice Thomas did not have adequate experience on any of those metrics … in which case, I’m not bummed at all.
Orin Kerr - August 18, 2008 at 2:00 am
The left thinks the right is radical. The right thinks that of the left. I suppose such claims rally the troops, but I’m not sure they actually advance any analytical claim. Further, my sense is that the current U.S. Supreme Court’s rulings are generally quite close to the center of American politics right now. If anything, the Court’s rulings probably lean slightly to the left of the center of the American people (witness cases like Boumediene, Kennedy v. Louisisana, etc.) If you’re looking for a metric for how “radical” the Court is or may be, I think that’s a much more useful metric than whether and how much the Court has moved to the right since the Summer of Love.
Seth Finkelstein - August 18, 2008 at 3:59 am
“The left thinks the right is radical. The right thinks that of the left.”
Yes, well, by definition, that could be said of every spectrum no matter how narrow, so it’s a sort of meaningless middle-ism, implicitly imposing equivalence by fiat.
Bob Barr thinks McCain is too leftist. Ralph Nader thinks Obama is too rightist. That sort of game can be run for anything.
“quite close to the center of American politics right now.” - which is extremely, extremely right-wing in other senses. Sometimes that’s not the correct place to be, e.g. habeas corpus or torture. If half the public favored torturing prisoners to death, and half the public opposed torture entirely, a moderate, middle-of-the-road position of torturing prisoners only halfway to death is then quite close to the center.
anon - August 18, 2008 at 7:59 am
Wow. I’ve always admired the way that the postings on this blog didn’t engage in this sort of red meat (or blue meat) rhetoric. There are of course places aplenty one can go to get that sort of thing. In that light, what a disappointment this post is.
Orin Kerr - August 18, 2008 at 9:23 am
Seth,
When I was in 2nd grade, I had a teacher who wanted to emphasize that you can’t use relative words without a standard. She would ask us questions like, “Is an elephant big?” or “Is snow cold?” and the entire class would yell out, “Compared to what?!?!” The idea, which I remember seemed pretty sensible back in second grade, was that it’s pretty meaningless to use a relative word about a thing without trying it to some standard.
I tend to think that when we discuss the views of a candidate running for democratically elected office, and we want to placie that candidate’s views on the political spectrum, the “compared to what?” question is most sensibly answered with reference to the American voters who will be voting on the candidate. It’s not the only standard, of course, but it makes sense in the context of a democratic vote of the People to use the standard of the People.
It seems to me that your preferred standard is relative to your normative view of what is “correct.” That is, that the answer to “compared to what” is “compared to the views of Seth Finkelstein.” Or if I misunderstand you, what is the standard you are using? To quote my second grade teacher, “compared to what?”
anon - August 18, 2008 at 10:43 am
Wow, Orin sure can evade substance easily. Seth’s point on “mindless middle-ism” is right on point. Take a look at Jeff Rosen’s article on “Supreme Court, Inc.” to see just how “slightly left of center” this court is. Anyone who’d make the claim that this court is left is obviously a part of the extreme right.
Thomas Crocker - August 18, 2008 at 10:57 am
Let me first say that I agree with Joe Miller’s sentiments. Not so very long ago in Supreme Court history, Justices were appointed with a broader spectrum of experience. Justice O’Connor’s time as a legislator comes to mind. I agree that it would be good for the Court as an institution if some future appointments provide an “infusion” of more institutionally diverse experiences.
Second, I’m not sure what all the fuss is over my use of the term “radical” in the phrase “the radical nature of McCain’s vision” where I’m referring to what we can only infer from his comments might be his constitutional vision. From the OED, a primary meaning of “radical” is: “Relating to or forming the root, basis, or foundation of something; original, primary.” I think that Orin is simply mistaken to suggest that “radical” is a comparative term; rather it is a term that refers to a feature that is “fundamental to or inherent in” a thing (or position, etc.).
In light of my explanation of some of the substantive content of Justice Thomas’s jurisprudence, to say that the change in constitutional vision and culture would be radical is not to engage in anything like red/blue state rhetoric (or “to rally the troops” as Orin suggests). I’m calling attention to the disconnect between McCain’s claims about “strict construction,” and the foundational, root, or primary substance of constitutional law that is at stake (e.g., the scope of Congress’s commerce power or the role of religion in public life). It is certainly possible that if explained, a majority of Americans may agree with such radical (read “root or foundational”) change. But widespread agreement would not change the fact that the substance would be a truly radical change. Bruce Ackerman calls the New Deal a constitutional moment. It seems plausible to say that further shifts in the content of our constitutional law in the direction Justice Thomas’s jurisprudence would likely lead to another constitutional moment. That would be just as radical (read “foundational or root”) as the New Deal constitutional moment was. But the fact is, no such explanation of foundational (is that better?) constitutional vision was on offer from McCain (or likely will be). By contrast, again, not for some red/blue point scoring, but for interest in views about constitutional structure, I wanted to call attention to Obama’s willingness to engage constitutional substance by advocating for a more robust judiciary willing to check the executive. On substance, I happen to agree that a robust checking function for the Supreme Court is part of our foundational constitutional structure.
Finally, constitutional law and practice are not inflexible or immutable. Both respond to and are partially constitutive of political, cultural, and social practices. This is why constitutional law is so fascinating and can be so contentious. But when we talk about constitutional structure and practice we are talking about foundational or radical governing features. Has “radical” lost its meaning?
Orin Kerr - August 18, 2008 at 11:33 am
Thomas,
In my experience, the word “radical” it is a buzzword frequently used in debates about the judiciary. I assume you meant it in the way it is usually used. If you meant to mean something quite different, then I apologize for the misunderstanding and I regret the error.
More broadly, though, I am not sure why Justice Thomas’s views are the benchmark you have chosen in your comment. As I understand it, Senator McCain was asked who he wouldn’t have appointed. McCain, a conservative, named the four most liberal Justices on today’s court. But why does this equate with a wish to appoint several more Justice Thomases to the Supreme Court? Senator McCain has stated that his role models for future Justices would be Roberts and Alito; I would think they would be the natural starting point to make claims about what McCain nominees would be like, not Thomas.
Anon 10:43am,
I am attempting to engage in the substance head on, actually: If you think I have misunderstood Seth’s point, then please explain why.
Stokie - August 18, 2008 at 11:39 am
“Has ‘radical’ lost its meaning?”
It has in the sense you are claiming to use it. OED or not, that definition is hardly self-evident, and, if you intend to mean that, you can get to that meaning easier with a different word choice.
Thomas Crocker - August 18, 2008 at 12:01 pm
Thanks Orin,
When people (mis)use “radical” in political contexts, don’t they usually mean to draw attention to the fundamental/foundational nature of the other position? To say “that’s a radical position,” may often mean, “that’s a position that goes to the foundation,” perhaps in contrast to a claim that the difference of positions are merely policy differences that don’t implicate any foundational commitments. But, I agree the term is subject to abuse.
Yes, Sen. McCain does mention Justices Roberts and Alito “as his two most recent favorites.” I focus on Thomas for two reasons. First, I don’t feel as confident saying what the Chief Justice’s or Justice Alito’s views are. Justice Thomas has been very open about explaining his constitutional views, which would make fundamental departures from current jurisprudence along a number of issues. I’m confident that the Chief and Justice Alito largely share Justice Thomas’s view of executive power and the more chastened view of judicial power to check the executive; but I’m not so sure where they stand regarding Congress’s commerce power, for example. But second, Sen. McCain’s temporal limitation on his favorites suggests quite plausibly that Justices Scalia and Thomas are his “older” favorites. So, if McCain were comfortable with Justice Thomas’s jurisprudence, which is plausible given the fact that Thomas is not a justice he would not have appointed, then the contrast between where the Court would move jurisprudentially and where it is now can be drawn more sharply.
Orin Kerr - August 18, 2008 at 12:29 pm
Thomas,
In my experience, the word radical is used in debates on law and the judiciary to mean “implicating a great deal of change from the status quo,” usually with the negative connotation that the change is without basis or done in an unthinking way.
I appreciate the explanation for why you selected Justice Thomas, but I don’t think it was a helpful choice. The last two years have shown that Chief Justice Roberts and Justice Alito are very different Justices than Thomas. Thomas is a radical in the sense you use it. He operates from first principles, and he is prepared to make foundational changes in the law. In contrast, Roberts and Alito are incrementalists: they more mirror images of Ginsburg than akin to Thomas. They are not radicals in the sense of believing in foundational change, unlike Thomas.
GIve this, I don’t think it works to say that Thomas is McCain’s model because McCain didn’t mention Thomas as someone who he wouldn’t appoint. (McCain also didn’t mention Kennedy, for example, but I don’t think it would work to conclude on that basis that McCain really likes Kennedy.)
P.S. Ruckman, Jr. - August 18, 2008 at 1:12 pm
I have tried to see Obama as the more “sophisticated” candidate, and he has gotten my money in the past. But sometimes he just makes me laugh out loud. He can say nothing in such a stylish way. For example, he told Warren,”But let me just speak more generally about the issue of abortion, because this is something obviously the country wrestles with. One thing that I’m absolutely convinced of is that there is a moral and ethical element to this issue.” Duh!
As for the appointment of Supreme Court justices, it seem safe to say that both candidates will be shamelessly partisan. McCain will make more of an effort to cloak his decision making behing the rhetoric of activism and restraint. Obama will simply choose invidividuals who hold his own views, without apology. With a Democratic controlled Senate, he will not even have to pretend that some set of objective qualifications are guiding his decision making.
A.W. - August 18, 2008 at 2:41 pm
Obama called Thomas inexperienced. Not only did Thomas have more experience in the right areas to be a SC Justice than Obama does to be president today, but hell, Thomas was more qualified to be president, too.
Next he will complain that McCain is not seasoned enough.
What is it with Dems, that they can’t just admit that an opponent is smart, able and wrong? Why do the dems always have to say the other side is stupid, regardless of the evidence?
JP - August 18, 2008 at 4:41 pm
Thomas,
It seems absurd to argue that you weren’t using the term “radical” in its comparative sense in your concluding paragraph. It immediately follows a paragraph in which you call McCain’s view of the judiciary “more extreme,” refer to the Court moving right on the political spectrum, and link to Sunstein’s post comparing the current Court to previous Courts. Even if, despite this context, you meant “radical” in the way you claim, Orin’s original point regarding reference points still stands for your penultimate paragraph.
JP - August 18, 2008 at 4:52 pm
I don’t see why the Obama quote struck you as so thoughtful. It seems to me that he just focused on an area where he can plausibly claim that “original inten[t]” lines up with his policy preferences. Would your reaction have been the same if he (or McCain or anyone else) said the following:
“One of the most important jobs of the Supreme Court is to guard against the encroachment of the [legislative] branch on the power of the other branches. I think [Justice Ginsburg/the Court for the last 70 years] has been a little bit too willing or eager to give [Congress], whether [Democratic or Republican], more power than the Constitution originally intended.”
Stuart Buck - August 18, 2008 at 6:10 pm
I think it’s too bad that Obama, of all people, resorted to the typical cliche of criticizing Thomas’s intellectual stature while praising Scalia on that point.
Stuart Buck - August 18, 2008 at 6:16 pm
As for McCain’s position, it is useful to recall that every Supreme Court nominee since 1968 has (arguably?) moved the Court towards the right on the political spectrum, except perhaps Justice Ginsburg’s replacement of Justice White.
Perhaps??
So when McCain said he would not have appointed Justices Souter and Stevens (appointed by Republican presidents), and would not have appointed a moderate pragmatist like Justice Breyer, he shares with the current Administration a more extreme view of what an acceptable Justice’s jurisprudence should look like.
No, it doesn’t imply anything of the sort. He was asked who on the Supreme Court he wouldn’t have appointed. Who did you expect him to name, any of the Court’s conservatives?
A couple more Justices like Thomas would likely yield rulings allowing States to establish religion, rulings that begin to limit Congress’s commerce power to pre-New Deal parameters, and rulings that take seriously the notion of the “unitary executive,” a notion repeated by the Bush Administration in signing statements – among other dramatic changes. . . . .
I’m puzzled by the math here. Thomas’s concurrences in Zelman and Lopez were solo — not even Justice Scalia joined them. How do you suppose Thomas would impose his views with the addition of a mere “couple more Justices”? I’ve been neglecting the news lately, but I’m fairly sure I would have heard it mentioned if the Supreme Court were down to 5 Justices these days.
A.J. Sutter - August 18, 2008 at 11:04 pm
Sorry to bring it up, but am I the only one who thought Obama mentioned Thomas because both are black (or perceived as such)? Obama may have wanted to be seen as fair, and to reassure middle-of-the-road white voters that he is color-blind. My guess is that his choice was a political calculation much more than a jurisprudential one. No less than for Roberts and Alito during their confirmation hearings, his goal for the moment is to get votes, not expound on legal philosophy.
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