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September|October 2004
The Scalias Court By Stephen B. Presser
Kerry's Even Keel By David Strauss
Dull and Duller By Mark Tushnet
The Passion Of Father Paul Shanley By JoAnn Wypijewski
Litigation By Loan Shark By Daniel Brook

Kerry's Even Keel

He doesn't have an aggressive agenda for the courts. That's a good thing.

By David Strauss

IN 2000, MANY OF US THOUGHT THAT THE OUTCOME of the election would determine the composition of the Supreme Court. It turned out to be the other way around. The court decided the election, and President Bush has had no chance to affect the court. Whoever is elected in 2004, though, can confidently expect to make three or even four Supreme Court appointments in his first term.

It would be much better, for the law and for the country, if John Kerry, and not George W. Bush, made those appointments. The reason lies in a dynamic that has shaped the two parties' attitudes toward the courts for a generation, and which has been responsible for the intense unpleasantness that has come to dominate the appointments process for the federal judiciary. The Republicans have an agenda for the federal courts, including the Supreme Court. The Democrats do not.

What's the evidence? For one thing, Bill Clinton's two appointments to the court, Ruth Bader Ginsburg and Stephen Breyer, are nonideological judges whose voting records are not very different from those of two moderate Republicans on the court, John Paul Stevens and David Souter. Beyond that, the issues that the Democratic Party most cares about these days—jobs, health care, helping the middle and working classes overcome economic dislocations, protecting Social Security and Medicare—are not ones about which the courts can do very much. (The one big exception, to which I'll return shortly, is reproductive choice.) Many of the hot-button Republican issues, though—cutting back on the regulation of business, for example, and promoting religion in public life—are very much matters through which the courts can further the Republican cause.

There is nothing intrinsically bad—or intrinsically Republican—about having an agenda for the courts. No president in the 20th century had a clearer agenda for the Supreme Court than Franklin Roosevelt, who systematically replaced justices who had invalidated New Deal legislation with justices who upheld it. President Bush's agenda, though, unlike Roosevelt's, is reactionary and exclusionary. People who are concerned about the courts should know that if they want pragmatic, moderate judges, they should vote for Kerry. If they want radical change, in a decidedly right-wing (and, I think, wrongheaded) direction, Bush is their man.

Consider gay rights. Bush's opportunistic embrace of the proposed anti-same-sex marriage amendment to the Constitution—and his effort to portray the issue of gay rights in general as one of "judicial activism"—prefigures appointees who will be hostile to expanding the rights of gays and lesbians. But Kerry shows no sign of wanting to invest significant political capital in Supreme Court nominees who are overtly in favor of a constitutional right to same-sex marriage. Eventually a court with Kerry appointees would be more likely than a court with Bush appointees to declare that such a constitutional right exists. But that would likely not happen for several years, at least, and then only when the issue had become less controversial than it is today.

In the near future, other issues concerning the rights of gays and lesbians will come before the court. Can a state, for example, discriminate against gays and lesbians who want to be hired as schoolteachers, or adopt children, or operate a day care center? On issues like these, a trend in favor of gay rights has begun to emerge. The court's decision last term invalidating Texas's anti-sodomy statute—with an unapologetic majority opinion written by one Reagan appointee (Anthony Kennedy) and a concurrence written by another (Sandra Day O'Connor)—establishes that much. Kerry appointees would be likely to follow, and perhaps slightly accelerate, the trend. A Bush court—consistent with the Republican agenda—would dig in its heels and resist.

On civil liberties issues, the pattern is the same. Kerry has taken a modulated view of the USA Patriot Act, supporting much of it but urging some changes. Bush and his attorney general, John Ashcroft, have acknowledged no major weaknesses in the Patriot Act and have asserted, in cases now before the Supreme Court, essentially unlimited power over people whom the president declares to be unlawful enemy combatants. In some respects, the war on terror has given Republicans an opportunity to advance "law and order" positions that they advocated long before September 11—such as the increased use of preventive detention and electronic surveillance, and the refusal to allow certain rules of international law to be applied to American officials.

Bush's judicial nominees are very likely to hold the same views. Kerry's appointees can be expected to reflect Kerry's more cautious approach: Unlike many civil libertarians, they are likely to accept some limits on traditional liberties, in order to deal with new circumstances, while still carefully questioning the government's justifications for its actions. And Kerry appointees will not see the war on terror as an opportunity to carry out a preconceived law enforcement agenda, because the Democrats don't have an agenda that the courts could or would adopt.

Here, in particular, the election of 2004 will likely have profound long-term effects. Justices appointed in the next four years may be on the court for decades. If the threat of terrorism is a fixture in American life for the foreseeable future, those justices will play a crucial role in defining the scope of the liberties that the next generation of Americans will enjoy.

Abortion, by contrast, is the one issue on which the Democrats do have an agenda. But efforts to overrule Roe v. Wade seem to have abated, and the issue has mostly disappeared from Republican campaign rhetoric. If Bush put forward a nominee opposed to a constitutional right to reproductive choice, it would be for show; barring a major political upheaval, such a nominee would not be confirmed. On the level of constitutional principle, then, this battle seems over. Abortion-related issues will still come before the courts: There is currently litigation over a federal ban on late-term abortions, and some state legislatures will try to restrict abortions in a variety of ways. But these issues will be narrow. The real question is whether the opportunity to have an abortion will be realistically available to enough American women who want or need one—and whether the conditions that cause unwanted pregnancies in the first place can be addressed. But those concerns are not for the courts. They involve the kinds of social and economic issues most effectively addressed by legislation.

THAT BRINGS US—AS FAR AS THE COMPOSITION of the Supreme Court is concerned—to the "sleeper" issue in the 2004 campaign. Any Democratic president, now or in the future, will depend on Congress's power over domestic affairs to accomplish his objectives. And here is where more Republican appointments could make a devastating difference.

There is a growing ideological movement among Republican legal thinkers to eviscerate Congress's power over important areas of national life. The catchphrase is "the Constitution in exile," and the central idea is the illegitimacy of the modern regulatory and welfare state—the product of the Progressive Era, the New Deal, and the Great Society, beginning a century ago and spanning three generations. The true Constitution, according to this view, is more like the one that the Supreme Court enforced for about 30 years at the beginning of the 20th century, when the court declared unconstitutional a wide range of social welfare and regulatory laws—minimum wage laws, maximum hours laws, child labor laws.

The effort to bring back that understanding of the Constitution from "exile" has already begun to emerge. The current Supreme Court has revived federalism as a significant limit on Congress's power, declaring unconstitutional the Gun-Free School Zones Act, the Brady Handgun Violence Prevention Act, and the Violence Against Women Act, and cutting back on the effectiveness of several other important pieces of legislation that Congress has passed. Justice Clarence Thomas has even called for a wholesale reimposition of limits on Congress's power under the Constitution's commerce clause, one of the principal bases for federal regulation of the national economy. Thomas and Justice Antonin Scalia have both pushed for a revival of the constitutional protections of private property.

The hostility to federal regulation has taken more subtle forms as well. In relatively low-visibility, technical cases involving the interpretation of federal statutes, the current court often indulges a bias in favor of deregulation. And, increasingly, the First Amendment is used as a means of gutting business regulation, as with limits on advertising by tobacco and drug companies. Unlike abortion or affirmative action, for example, this aspect of the Republican agenda attracts little attention, and it would be difficult for Democrats to use it as a rallying point against Republican nominees to the court. But a court stocked with those who believe that the Constitution is in exile would block initiatives of Democratic presidents and Congresses far into the future.

The theory of the Constitution in exile is arrogant and unfounded. It would override decades of precedent, and invalidate important and widely supported legislation, on the basis of some Republican lawyers' and judges' claims to unique access to what the framers of the Constitution believed. But if Bush wins in November, this may well be the future of American constitutional law.

David Strauss teaches constitutional law at the University of Chicago.

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