This week, the Supreme Court will hand down its final opinions for the 2007-08 term, and some of you will be really angry about guns, and some of you will be angry about Guantanamo. But then the justices will take off for Europe (or New Hampshire) and you will take off for the pool (or New Hampshire), and then I fear nobody will think much about the court again until next June.
The composition of the high court is one of the most important issues at stake in the November election. While the justices cannot bring down gas prices or bring home the troops, their decisions in the coming years will affect just about everything else: your rights regarding privacy, reproduction, speech and religion; how to count your vote and where your kids go to school; as well as your occupational and environmental protections. You name it, they’ll decide it. Or they’ll decide not to decide it (which may be even worse).
It’s easy to convince yourself that who sits on that bench is irrelevant to you because the cases are too complicated to comprehend or too remote to affect your life. But the next president may have the chance to appoint as many as three justices—the constitutional equivalent of a royal flush. Herein, a user’s guide to the Supreme Court for you to print out and take to the voting booth (or read at the pool).
The basics: The court is the highest judicial body in the country, made up of nine justices appointed by the president and confirmed by the Senate. Justices serve for life so long as they exhibit “good behavior,” which is meticulously calibrated as someplace between the possession of a heartbeat and the capacity to draw breath. The justices decide cases from October through June of each year, for which they have a total of about three dozen wee, elfin creatures called clerks to assist them. This term they will decide fewer than 70 cases—the smallest docket in modern history. A traffic judge hears that many cases on a slow day.
The job description: Since Marbury v. Madison, decided in 1803, the justices have had the power of “judicial review,” which means (at least in theory) that the court can strike down any law it deems unconstitutional. This may sound somewhat elitist and undemocratic, because these unelected justices have the power to throw out a law even if it is a) popular and b) properly passed by a legislature. Why? Because sometimes duly elected legislatures pass popular but unconstitutional laws. Not everyone currently seated on the bench, though, believes in deploying this constitutional superpower. They would rather have the justices sit at the constitutional kids’ table and eat mac and cheese. According to some of these more conservative jurists, judges should refrain from second-guessing the other branches of government in all matters of national security, employment discrimination, health policy, the separation of church and state, free speech, and environmental protection. Never fear. This still leaves the court front and center on critical jurisprudential questions of admiralty law and who gets to sit in the front seat when someone yells “shotgun.”
The justices: Anybody who believes the current Supreme Court looks like America needs to take a few more trips on a Greyhound bus. Justice John Paul Stevens is 88, and Ruth Bader Ginsburg is 75. David Souter is 68, and it’s widely rumored in legal circles that he wants out (see, New Hampshire, above). All three of these jurists recently voted against the proposition that the government can call you an enemy combatant based on your last name or area code, then hold you without charges for six years at Guantanamo Bay, on the promise that you’re either a bad guy, or will very likely become one after being held for six years without charges at Guantanamo Bay. If just one of these three were to retire, we could easily return to a world in which decisions about who is or isn’t a so-called “enemy combatant” are made by the military, in secret, and with roughly the same sophistication that seventh-grade girls use to decide who’s “popular.”
The candidates: For reasons that are not wholly clear, presidential hopeful John McCain has been treating the entire federal judiciary as a punching bag, regularly blasting “judicial activists” who “abuse” the courts, evidently by deciding cases in ways that he dislikes. (Never mind that most of them were appointed by Republican presidents.) Barack Obama, for his part, seeks jurists with “the heart, the empathy, to recognize what it’s like to be a young teenage mom.” (If both sides sound like they are talking in code about the possibility of reversing Roe v. Wade, that’s because they are.) But as important as abortion is, it’s only a part of why the composition of the court is critically important to America. Recently, in a fit of pique, McCain called the court’s ruling in the enemy combatants’ case “one of the worst decisions in the history of this country,” warning of the “flood” of cases it will unloose upon the courts. Time and again McCain has railed against “lawsuits,” which are still—if one believes one has been wronged—a better solution than a fifth of vodka and a shotgun. In sum, McCain apparently wishes to appoint legal eunuchs to the high court; Obama evidently wants someone capable of channeling Ashlee Simpson.
The stakes: Very high. The conventional wisdom that the Supreme Court is precariously balanced on a knife’s edge—with four liberals and four conservatives battling for the heart and mind of swing Justice Anthony Kennedy—may be slightly too simplistic. The current term has now seen enough unanimous and near-unanimous decisions to suggest that last year’s narrative of a dug-in 5-4 court is dramatic but probably not quite the whole story. That said, it’s clear there are four justices on the bench who mistrust the judiciary in the manner of a Rockette who doesn’t much care for dancing. Dissenting in this month’s enemy combatants case, Justice Antonin Scalia predicted that judicial overreaching “will almost certainly cause more Americans to be killed.” Chief Justice John Roberts added that “unelected, politically unaccountable judges” should not shape detention policy. It’s not just bad judges who should not be deciding these claims in their view. Better that no judges oversee them. One more seat at the high court filled by someone who generally believes that jurists cannot be trusted to do much more than wear ascots, will spell the difference between a coequal branch of government and a court that cheers from the bleachers. In ascots.
At the heart of the high court’s biggest debates to come—questions about the scope of privacy and claims about presidential secrecy and power—there is a deeper question about the role of courts in this country. So, when you go to the voting booth on Nov. 4, don’t think just in terms of which candidate will appoint judges who are “good for women” or “good for property rights.” That’s terribly important, but it’s half the story. For eight years the Bush administration has treated the courts almost like an enemy: meddlers and elitists who cannot understand what it means to be at war. As a consequence, we find ourselves in a country where the rule of law is reduced to an occasional luxury, like heated seats. As you contemplate what you want your next Supreme Court to look like, ask yourself what happens when judges are sidelined—or when they’re chosen for their inclination to sideline themselves. If we really want to restore the rule of law in America, and the reputation of the United States as a land in which laws matter, we need to vote for a president who believes that we still call it a Supreme Court for a reason.
A version of this piece appears in Newsweek.