It Isn't Tilting in The Same Old Ways
By Dahlia Lithwick
The Washington Post
Sunday, June 15, 2008
With just two weeks left in the Supreme Court's term, everything we thought we knew about the Roberts court seems wrong. The question now is: Who plans to tell the presidential candidates?
Both Sen. Barack Obama and Sen. John McCain are finally beginning to campaign as though the composition of the Supreme Court actually matters. And that's a good thing, because -- the American public's lack of interest notwithstanding -- the court counts as much as almost every other issue facing the voters in November. Assuming that you work, worship, vote, parent, own property the government might covet or occasionally have sex, the high court will intimately affect your life. This is particularly true now that the average justice is older than Mount Rushmore and the next president may well have two or three new court picks in the space of a few years.
But it's hard to generate much public hysteria over nameless, faceless future jurists deciding nameless, faceless future cases. And so the court plods along undisturbed, like the tortoise, while presidential elections zoom by like the hare.
But the dialogue about the judiciary now taking place between the two presidential nominees is antiquated. (Bear in mind that in picking their way among the minefields of abortion, affirmative action, same-sex marriage and school prayer, presidential candidates tend to discuss the courts only in code.) Both McCain and Obama have now taken predictable stands on the Supreme Court of their dreams. In a speech last month, McCain offered a jeremiad about the evils of "judicial activism," deriding the "common and systematic abuse of our federal courts by the people we entrust with judicial power." Last March, Obama offered up his own judicial ideal: a judge with "enough empathy, enough feeling, for what ordinary people are going through."
The main problem: Both McCain and Obama start from the premise that the Supreme Court is tidily balanced among four conservative judicial minimalists, four liberal judicial empaths and the inscrutable Justice Anthony M. Kennedy, swinging away at the center. This is a useful model for trying to stir up public concern about the court's composition, and the decision in at least one blockbuster case -- last Thursday's ruling that the Bush administration is violating the constitutional rights of foreign terrorism suspects being held indefinitely at Guantanamo Bay, Cuba -- did indeed go down along the traditional lines. Still, the current term is rapidly proving the simple conservatives-vs.-liberals construct to be a thing of the past. This court term has revealed a series of patterns that aren't so easy to neatly file away: conservative moderation, moderate conservatism, liberal pragmatism and pragmatic minimalism. And that's just for starters.
(Continued here.)
The Washington Post
Sunday, June 15, 2008
With just two weeks left in the Supreme Court's term, everything we thought we knew about the Roberts court seems wrong. The question now is: Who plans to tell the presidential candidates?
Both Sen. Barack Obama and Sen. John McCain are finally beginning to campaign as though the composition of the Supreme Court actually matters. And that's a good thing, because -- the American public's lack of interest notwithstanding -- the court counts as much as almost every other issue facing the voters in November. Assuming that you work, worship, vote, parent, own property the government might covet or occasionally have sex, the high court will intimately affect your life. This is particularly true now that the average justice is older than Mount Rushmore and the next president may well have two or three new court picks in the space of a few years.
But it's hard to generate much public hysteria over nameless, faceless future jurists deciding nameless, faceless future cases. And so the court plods along undisturbed, like the tortoise, while presidential elections zoom by like the hare.
But the dialogue about the judiciary now taking place between the two presidential nominees is antiquated. (Bear in mind that in picking their way among the minefields of abortion, affirmative action, same-sex marriage and school prayer, presidential candidates tend to discuss the courts only in code.) Both McCain and Obama have now taken predictable stands on the Supreme Court of their dreams. In a speech last month, McCain offered a jeremiad about the evils of "judicial activism," deriding the "common and systematic abuse of our federal courts by the people we entrust with judicial power." Last March, Obama offered up his own judicial ideal: a judge with "enough empathy, enough feeling, for what ordinary people are going through."
The main problem: Both McCain and Obama start from the premise that the Supreme Court is tidily balanced among four conservative judicial minimalists, four liberal judicial empaths and the inscrutable Justice Anthony M. Kennedy, swinging away at the center. This is a useful model for trying to stir up public concern about the court's composition, and the decision in at least one blockbuster case -- last Thursday's ruling that the Bush administration is violating the constitutional rights of foreign terrorism suspects being held indefinitely at Guantanamo Bay, Cuba -- did indeed go down along the traditional lines. Still, the current term is rapidly proving the simple conservatives-vs.-liberals construct to be a thing of the past. This court term has revealed a series of patterns that aren't so easy to neatly file away: conservative moderation, moderate conservatism, liberal pragmatism and pragmatic minimalism. And that's just for starters.
(Continued here.)
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