Chemerinsky on the Coming Supreme Court

October 7, 2008

Erwin Chemerinsky may be a dyed in the wool lib, but one of his treatises was one of my best friends through law school. His opinion matters:

The issue of judicial appointments is particularly important in this election because there are almost sure to be vacancies on the Supreme Court during the next presidential term. It seems unlikely that Stevens will remain on the court until 2013, when he would be 93. Ginsburg is 75, and there is speculation that she might retire. It also has been widely rumored that David H. Souter wants to retire and go home to New Hampshire.

If McCain gets to replace any of these justices, let alone more than one, there likely will be dramatic changes in many areas of constitutional law. There are almost certainly four votes on the current court — Roberts, Scalia, Thomas and Alito — to overrule Roe vs. Wade and allow the government to prohibit abortion. In light of McCain’s emphatic opposition to abortion rights, he likely would appoint the decisive fifth vote to end constitutional protection of those rights. Obama, by contrast, would almost certainly appoint individuals who would reaffirm Roe.

The disagreements between McCain and Obama about issues of constitutional law extend far beyond just abortion rights. McCain said that the Supreme Court’s decision in June protecting the right of those held as prisoners at Guantanamo Bay to have access to federal court hearings was one of the worst in history. Obama praised it for upholding the rule of law and ensuring compliance with the Constitution. Because it was a 5-4 decision that included Stevens, Souter and Ginsburg in the majority, McCain’s replacing even one of these justices could cause the court to reverse itself.


Moreover, the candidates — especially Obama — seem to want to avoid the underlying constitutional issues. For example, Obama rarely emphasizes his support for abortion rights, being content to say that the goal should be to decrease the number of abortions. Nor does he see political gain in defending affirmative action or the rights of suspected terrorists.

The Court only got back into session in the past few days. Topics of debate stemming from the Court’s jurisprudence will come up either tonight or next week.


One comment

  1. I found your blog on google and read a few of your other posts. I just added you to my Google News Reader. Keep up the good work. Look forward to reading more from you in the future.

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