Abortion, church-state separation among issues at stake

[Commentary] The 2008 presidential election, more than any in recent memory, will determine the future of the Supreme Court and thus the future path of American constitutional law. In this three-part series, we will look at the current state of the court and how the election of either candidate will affect the nation’s jurisprudence for decades to come.

Never before has the Supreme Court been so perfectly divided politically and ideologically. There are four consistent liberal voices on the court (Justices John Paul Stevens, Ruth Ginsburg, David Souter and Stephen Breyer), four consistent conservative voices on the court (Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito), and one voice squarely in the middle depending on the nature of the case (Justice Anthony Kennedy). And with the next two vacancies expected to be from the liberal side of that divide, this election will either allow or avert a dramatic shift to the right for the court.

With the retirement of Justice Sandra Day O’Connor, Kennedy has become the key swing vote on the court, often being the sole vote to determine the outcome of a case. During the 2006/2007 term, there were 24 cases that ended with the justices split 5-4; Kennedy was in the majority on all 24 of them. In the following term, which just ended, this breakdown wasn’t quite so stark. Eleven decisions were 5-4, with Kennedy in the majority on seven of them. According to Jeffrey Toobin’s recent book on the Supreme Court, The Nine, the two larger factions on the court work diligently to convince Kennedy to join their side on important cases, slanting the reasoning of their arguments to appeal as strongly as possible to his ideological positions.

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The three youngest members of the court are all on the conservative side: Alito (58), Roberts (53) and Thomas (60). The fourth, Scalia, is 72, but by all accounts he is in good health and relishes his job; he will likely serve on the court for another decade or more. The two oldest justices, on the other hand, are on the liberal side. Stevens is 88 years old and Ginsburg is 75, with a history of health problems, including cancer. And a third, Souter, is relatively young (68) and in good health, but is well-known to despise living in Washington. Based on those factors, many court observers believe both Stevens and Ginsburg, and quite possibly Souter as well, will retire in the next few years, leaving the next president to nominate their successors.

With the court so evenly divided, a single change in the lineup of justices could cause a significant ideological shift that could result in the overturning of many longstanding precedents. The most obvious and politically explosive: Roe v. Wade. That 1973 ruling, which secured abortion rights for American women, is hanging by a thread. Most Americans likely do not know how close that ruling has come to being overturned; in 1992, there were five votes to overturn the ruling until O’Connor and Souter convinced Kennedy to change his vote. On the current court there are four clear votes to overturn Roe on the conservative side of the court; replace Stevens or Ginsburg with an anti-abortion justice and that precedent is almost certain to be overturned. Indeed, several states and localities have attempted to pass laws declaring a fetus to be a human being from the time of conception, in order to provide a test case that could be used to overturn Roe, if and when that shift takes place.

But it’s not just abortion rights that are in danger. The current court has not yet had a significant case involving separation of church and state, but many key rulings involving school prayer, Bible distribution in schools and other establishment clause issues that were issued by earlier courts were narrow 5-4 rulings that could easily be overturned if there were five consistent conservative votes on the court. It should also be noted that perhaps this term’s most controversial ruling in Boumediene, the case involving habeas corpus rights (the right to challenge their detention in court) for detainees at Guantanamo Bay, was a 5-4 ruling; take out Stevens or Ginsburg and replace them with a conservative justice and that ruling may be overturned as well.

In the second part of this series, we’ll look at the types of judges each of the two candidates might nominate for the court, by looking at the constituencies they would have to please and the names that would likely be on their respective short lists of nominees.