Most Americans know practically nothing about one of the three most important institutions in their country, the Supreme Court. Most are at least vaguely aware of the president and Congress. If nothing else, they know that every couple of years these folks flood their TV screens with ads telling all about how their opponents are depraved, stupid, fiscally inept or, in John Kerry's case, less heroic than his stack of medals suggests.
But the judicial branch of the federal government is at least as important as the other two. Informed citizens should be aware of who sits on the Court and the effect it has on their daily lives. Different judges decide cases differently. The president gets to nominate new justices to the Court. As a result, the outcome of the presidential election will have far-reaching effects on American law that last long past the next four years.
There have been no changes in Court membership in the ten years since 1994. Thus far, George Bush has not had the opportunity to appoint any justices to the Court.
That, however, is about to change. Either John Kerry or George Bush will have enormous power to shape the future of American law and political life. Justices Rehnquist and O'Connor are almost certain to retire in the next four years. Justice Stevens is likely to go with them. All three were nominated by Republican presidents, but Stevens is fairly liberal and O'Connor centrist. Further, as Rehnquist is Chief Justice, a new Chief Justice will need to be named.
These changes in Court membership have enormous impact on American law because the Court is such a powerful institution. Most people are aware of such landmark cases as Roe v. Wade and Brown v. Board of Education, which have radically altered the landscape of American life, but every term the Court decides issues of enormous importance. Replacing three justices will be enough to alter Supreme Court decisions in either direction in nearly every aspect of the law.
Kerry and Bush have very different attitudes about whom to name to the Court. Bush is open in his desire to put the most radical people he can find on the bench, publicly supporting such ultra-conservative justices as Scalia and Thomas. His nominations to lower federal courts have been exceedingly conservative, leading to congressional opposition and the backdoor process of recess appointment. Kerry opposes this, criticizing such choices as Judge Charles Pickering, whom Bush appointed to the Fifth Circuit Court of Appeals. Pickering had been a controversial choice because he feels that all discrimination cases lack merit, and once went out of his way to lower the defendant's sentence in a cross-burning case.
Though most of the justices have been appointed by Republican presidents, most are judicially centrist. Only Scalia, Rehnquist and Thomas favor a radical conservative shift in the law. Recent dissents from Scalia and Thomas exemplify this desire. Thomas opposed extending Constitutional rights to so-called \enemy combatants"" held in Guantanamo Bay. Scalia opposed decriminalizing homosexuality. Both are in favor of a narrower reading of Constitutional rights, meaning fewer freedoms for American citizens. Two or three more justices like Scalia or Thomas, or a Chief Justiceship for one of them, would dramatically change the face of American law.
The decision voters are faced with, therefore, is stark. Bush will give the Court an enormous rightward shift in an effort to roll back civil rights. Kerry will continue the centrist trend the modern Court has taken. In either case, this influence will be felt long after our next president leaves office. Americans should be informed of the enormous difference this will make to their lives and the lives of their children.
Josh Gildea is a third-year law student. He can be reached at opinion@dailycardinal.com. His column runs every Wednesday in The Daily Cardinal.
