Supreme Anxiety

Do the Supreme Court strategies of Obama, Clinton, and McCain offer any reason to cheer?


On Sunday, Supreme Court Justice John Paul Stevens celebrated his eighty-eighth birthday. Last month, Justice Ruth Bader Ginsburg turned a spry seventy-five. It takes no leap of faith to imagine America's next president replacing one or both of these justices on the Court. Aside from the usual talking points—one side will protect the right to choose, the other will overturn Roe v. Wade, etc.—what sort of justices should we expect from major party frontrunners Barack Obama, Hillary Clinton, and John McCain?

On the most pressing issues of the day, executive power and civil liberties during times of war, Sen. Barack Obama (D-Ill.) is by far the most palatable. For starters, he's clearly on record against the Bush administration's illegal wartime power grab—what the University of Chicago's Richard Epstein has called "executive power on steroids." Obama has said repeatedly that he'll close Guantanamo, restore habeas corpus to American-born enemy combatants, and end "the practices of shipping away prisoners in the dead of night to be tortured in far-off countries." He thinks the detention of American citizens without trial is illegal and is opposed to both warrantless wiretapping and the use of presidential signing statements to bypass federal law. Any judge sharing most or all of these views would be a welcome addition to the current Supreme Court.

At a glance, Sen. Hillary Clinton (D-NY) occupies similar ground. Stating her opposition to Judge Samuel Alito's recent confirmation to the Supreme Court, for instance, Clinton excoriated Alito's "excessive deference to presidential authority, coupled with his restrictive view of congressional authority, [which] tells me he doesn't have the proper reverence for separation of powers."

Fine words. But what about her own deference to the wishes of the White House when voting for the USA PATRIOT Act in 2001 and its reauthorization in 2006? What about her support for the 2003 invasion of Iraq, a position she's trying unsuccessfully to downplay in the face of Obama's more credible antiwar record? Does anyone actually believe President Hillary Rodham Clinton will inaugurate a more restrained executive branch? The candidate herself apparently doesn't. As Jacob Sullum noted here earlier this week, Clinton told ABC News that, "I wish that, when my husband was president, people in Congress had been more willing to recognize presidential authority."

John McCain, of course, has made winning the Iraq War the centerpiece of his campaign. Yet he's also spoken out forcefully against the use of waterboarding and rejected outright the use of presidential signing statements, telling the Boston Globe, "I will either sign or veto any legislation that comes across my desk." Those are big pluses.

On the question of enemy combatants, however, McCain turns coy, maintaining that while American citizens are entitled to due process, the commander in chief nonetheless retains the power to hold them as enemy combatants. Precisely what due process means in this context remains unclear. Ultimately, however, it's McCain's vigorous and misguided support for this unnecessary war that's the most troubling in terms of the future Court. There is every reason to believe that McCain's nominees would vote to uphold his administration's conduct and pursuit of the war. That's why he'd place them on the Supreme Court in the first place.

Nevertheless, McCain does have his moments. Asked by a writer from Human Events which legal precedent he'd most like the Supreme Court to overturn, McCain responded "eminent domain," a reference to Kelo v. City of New London, the deplorable 2005 decision which allowed the pharmaceutical company Pfizer to acquire private property seized via eminent domain under an "economic revitalization" plan. "That is one I am very concerned about," McCain stressed.

That's a great answer. But what about McCain's frequently repeated promise to avoid so-called activist judges, to nominate only those individuals who "do not legislate from the bench?" The Kelo decision, it's important to remember, represents McCain's dream of judicial restraint, not his nightmare of judicial activism. In Kelo, Justices Stevens, Breyer, Ginsburg, Souter, and Kennedy deferred to the wisdom of local officials; they respected the electoral preferences of local voters. Only an activist Court would have struck down New London's development scheme. Indeed, it would have taken a majority that legislated its own views "from the bench" to save Susette Kelo's home from the bulldozer. On this point, of course, McCain simply echoes the confusion of most contemporary conservatives, who rail against judicial activists for striking down sodomy laws on the one hand, while openly wishing for activist judges to strike down affirmative action and eminent domain laws on the other.

Still, McCain's muddled take on law and economics at least recognizes property rights. His Democratic opponents are openly hostile to any decision that would limit the size or scope of the regulatory state. Explaining his vote against the confirmation of Judge John Roberts to the Supreme Court, for example, Senator Obama listed a handful of contentious issues where "what is in the judge's heart" will prove critical. In addition to abortion and affirmative action, both of which are predictable litmus tests for any Democrat, Obama singled out the question of "whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce."

He's referring here to the post-New Deal trend of Congress relying on its constitutional power, under Article 1, Section 8, "To regulate Commerce…among the several states," in order to pass legislation touching on every aspect of American life, from economics to crime. In essence, as the legal scholar Randy Barnett has argued, by adopting the widest possible interpretation of the Commerce Clause, "courts have granted Congress a near plenary power to do anything it wills and have thus nearly destroyed the system of limited enumerated powers."

Which is apparently fine with Barack Obama. So is the Court's disastrous decision in Gonzales v. Raich (2005), which struck down California's medical marijuana law in favor of federal anti-drug laws "tangentially related" to interstate commerce. Given Obama's weepy remarks last year to Planned Parenthood, where he described his ideal Supreme Court justice as "somebody who's got the heart, the empathy" to sympathize with society's downtrodden, Obama's lack of empathy for medical marijuana users is doubly deplorable.

Not that Hillary Clinton's record on the Commerce Clause is much better. Consider her response to U.S. v. Lopez (1995), where the Supreme Court nullified the Gun-Free School Zones Act, which had made it a federal crime under the Commerce Clause to knowingly possess a handgun within 1,000 feet of a school. Speaking before the liberal American Constitution Society in 2003, a speech later reprinted in the Georgetown Law Journal, Senator Clinton attacked Lopez for imposing-for "the first time in sixty years," no less-a "substantive limit on what Congress can and cannot do under the Commerce Clause." As if that wasn't bad enough, Senator Clinton found herself worrying about the constitutionality of every bright new idea. "The next time I consider school safety legislation, should I wonder whether school safety is 'truly national' or 'truly local,'" she asked. The answer, by the way, is yes. Of course she should wonder, as should every lawmaker. That they don't is all too obvious.

So where does all that leave libertarians over the next four years? Given that the Supreme Court is very likely to hear cases challenging the Bush administration's wartime policies and very unlikely to revisit the Kelo or Raich decisions, Obama definitely emerges as the lesser evil. But given his dangerously illiberal views on economics, as well as the tough political realities he (or Clinton or McCain) will likely face, we're better off forgoing hope and preparing for the worst.

Damon W. Root is a reason associate editor.

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  1. I have to read an article to know I will be dissapointed with the possible Supreme Court choices of 2 Dem. Leftists and a RINO?

  2. Damon W. Root digs through Hillary Clinton, Barack Obama and John McCain’s briefs


  3. The Kelo decision, it’s important to remember, represents McCain’s dream of judicial restraint, not his nightmare of judicial activism.

    I’m gonna call bullshit. The lower court decision on Kelo was judicial activism writ large, agreeing with expanding the definition of “public use” to mean “private use by politically-connected people”.

    By this contorted view of judicial constraint, it would be judicial activism to overturn the DC gun ban, because hey, a judge somewhere decided the Second Amendment doesn’t really apply.

    I mean, really, judicial activism is anytime the Supreme Court overturns a lower court decision? Really?

  4. How can we know what thinking a prez will use in picking judges? Maybe they’ll want a judge who’ll be that extra vote in empowering them to accomplish what they want. OTOH, maybe they want one who’ll provide an excuse for them to not get something done, so they can appear to favor some course of action while saying, too bad I’m not allowed because of the mean judge. Or maybe they’ll be like Bush and just try to appoint cronies regardless of policies. An appointment to a federal bench could be payback to someone who helped them win a nomination to the US senate, or helped a crony’s son get into West Point.

  5. Prolefeed- That is basically what I was thinking when I read this. It sounds like Root’s definition of “activism” is any situation where the court chooses to override the states’ right to make their own decision about a matter.

  6. Prolefeed- That is basically what I was thinking when I read this. It sounds like Root’s definition of “activism” is any situation where the court chooses to override the states’ right to make their own decision about a matter.

    As I understand it, the conservative complaints about “judicial activism” that Root describes are essentially wishes for an unbridled tyranny of the majority. But if the Supreme Court is encouraged never to thwart the will of the majority of the citizenry expressed through legislation, what’s the point of having that third branch of government, anyway?

    To put it another way, Socrates could have used an Athenian Supreme Court to thwart the will of the majority that ordered his execution for “dangerous” speech.

  7. The real problem, IMHO, is that judges who are often identified as “liberal” are great on personal & civil liberties and pretty awful on property rights, and those monikered “conservative” are good on property and a fucking embarrassment on personal & civil liberties.

    Does anyone see those trends changing anytime soon? Because if not, I doubt there will be anyone to get excited about for the court in the near future.

  8. Yet more evidence that the term “activist” is meaningless and therefore useless in discussing judicial decisions. Frequently the term is used to simply mean “an opinion that I don’t like,” while Root seems to take it to mean any decision that strikes down an action of an elected branch of government. Neither sense of the term is at all helpful in distinguishing good decisions from bad ones. Note also the equivocation here– I very much doubt that McCain was using the term “activist” in the same sense that Root does– indeed, applying the former (and more common) definition, McCain would probably argue that Kelo was an activist decision.

  9. The real problem, IMHO, is that judges who are often identified as “liberal” are great on personal & civil liberties and pretty awful on property rights, and those monikered “conservative” are good on property and a fucking embarrassment on personal & civil liberties.

    Yeah, which is just why I wish folks who have thought things through enough to prefer freedom to politics would stop seeing conservatives as the “lesser evil.” Right wing, left wing – feh! Same carrion bird in between. From a freedom standpoint there’s no difference between them.

  10. Yet more evidence that the term “activist” is meaningless and therefore useless in discussing judicial decisions. Frequently the term is used to simply mean “an opinion that I don’t like,”

    Too true. The original definition had more to do with “legislating from the bench.”

    Overturning a state statute may or may not be legislating from the bench, depending on whether the statute is clearly unconstitutional. Roe v. Wade, depending as it does on emanations of penumbras to overturn a state law, probably qualifies. Assuming the D.C. gun laws are overturned, I wouldn’t count that as legislation from the bench.

  11. R C Dean,

    True, but “legislating from the bench” creates the same problem with subjectivity as “activism” does. Of course it’s true that some judicial opinions cross the line between good-faith interpretation of the law and usurpation of the legislative role, but where that line falls depends on the facts of each case and can be hard to determine.

    If I recall correctly, I don’t think that Roe explicitly mentions penumbras and emanations, but it does rely heavily on Griswold, which is where that nonsense originated. But that’s a perfect example of what I’m talking about– a reasonable argument can be made that Roe follows plausibly from Griswold, so in relying on the reasoning of a bad precedent, is the Court “legislating” or “interpreting”? I just don’t think the distinction has much applicability most of the time.

  12. Two comments on the article:

    1. Since when does the Supreme Court pass judgment on the decision to initiate or end a war? Those decisions have always been made by the political branches, and the Court since John Marshall has never intervened in those decisions. McCain’s support for the Iraq War, as opposed to his views (pro or con) on specific measures such as torture, has nothing to do with his choices for the Supreme Court.

    2. I agree with Prolefeed: a court does not become “activist” when it strikes down an act of the legislature that either is clearly contrary to an express limitation on government action (e.g., taking of property for a non-public purpose and without due process of law) or exceeds the scope of a delegated power (e.g., using the commerce clause to regulate activity that has only the most attenuated no impact on interstate commerce. An “activist” court is one that re-writes constitutional law to reach a desired outcome, or which oversteps its authority as a decider of law to pass judgment on political questions that are the province of the legislature or executive.

    On these measures, suggesting that Obama is the best choice among the candidates is somewhat hard to defend in my view. He all but invites his judges to base their decision on anything but the law.

  13. On my lesser of evils calculus, McCain comes out best, but that’s really up to your own discretion. In any event, as Reasonoids, and thus, ostensibly Libertarians, we shouldn’t be voting for any of these losers.

  14. ‘Griswold’ repudiated the right of the state to prohibit contraceptive measures. The state has no business in such matters. ‘Roe’ simply fell in line with this notion.

  15. I was in all a huff to complain about the article, but I’m glad to see my fellow Reason readers are smart enough to have preempted me. Mostly, the use of “judicial activism” as a meaningless insult bothered me. Would it have been so painful just to admit that McCain wins a point?

    My other soapbox issue was just barely touched on: the enormous bias against the war by the writers. As noted, the courts have basically had nothing to do with the status of war, so it was a red herring. Also, the whole enemy combatant thing is a big mess because all the old rules and reasonings assumed that the enemy would be a nation, and enemy combatants citizens or armies of such. Calling in a nebulous “war against terror” will inexorably put innocents in the crosshairs just as the “war against drugs” has.

    So what would be a clear McCain victory suddenly gets transformed into an Obama one, with no explanation. By the author’s own admission, some Kelo-like decision is bound to come up again, and we can only hope that the courts will discover individual rights by then. It is unlikely by historical precedent that the courts will visit the war issues, and they could be more easily patched up with clearer legislative action to boot.

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