Our Next President Will Transform the Supreme Court

By Ellen Goodman, Washington Post Writers Group. Posted October 6, 2008.

BOSTON -- I really hate to bring it up. We already have two branches of our national government in full-scale meltdown. The president looks like a guy pleading before the parole board for early release. The Congress makes "dysfunctional" sound like a compliment.

But there is the third branch also in dire need of a rescue operation. Oyez, oyez, or should I say oy vey. I give you the Supreme Court.

When the court opens Monday, it will look like an oasis of calm in the capital. There are no neon-bright cases on the docket this term. Indeed, my personal favorite is the case of the "fleeting expletives," a suit brought against -- and made for -- Fox News, asking whether the FCC ban on dirty words covers the occasional Paris Hilton outburst.

But even the court's routine cases will wrestle with personal injury suits, job discrimination, sexual harassment and the environment. The not-so-fleeting fact is that the court ultimately touches every life. And so I come reluctantly to my quadrennial and usually futile plea to consider the court when you get into the presidential voting booth.

Most Americans have some guilty, civics-class understanding that the Supreme Court hangs in the electoral balance. More than 85 percent tell pollsters that the court is either very or somewhat important in how they cast their vote for president. But the court rarely rises to the top of the voting issues.

In support of my plea, take this pop quiz. What are the three longest lasting legacies of the Gerald Ford administration -- and the Betty Ford Clinic doesn't count. The answer? John Paul Stevens, John Paul Stevens, John Paul Stevens -- 88 years old and still on the bench. (OK, Dick Cheney was Ford's chief of staff, but let's not go there.)

George W. Bush's shadow will hover over the country long after he's gone, in the shape of John Roberts and Samuel Alito. In just three years and counting, the Roberts court has chilled desegregation efforts, allowed the first abortion ban with no exception for a woman's health, made it harder to claim employment discrimination, and easier to mix church and state.

In the cold world of actuarial tables, the next president is certain to have one choice and probably more. Candidates for retirement are Stevens, the 75-year-old Ruth Ginsburg and the homesick David Souter. That's three of the four moderate and liberal justices on a bench that has made an art of 5-4 decisions.

You do the math. If Obama is elected, the court will stay pretty much the way it is. If McCain is elected, Katie bar the door.

McCain, who plays a maverick on TV, promised the court to the right wing. He told the women of "The View": "I want people who interpret the Constitution of the United States the way our founding fathers envisioned for them to do so." This prompted Whoopi Goldberg to ask if she should worry about being returned to slavery.

Of course, slavery is not up for review and not every case comes with an ideological amicus brief. But you can count on one more Scalia, one more Alito, one more Roberts to limit or strike down the federal power for things such as cleaning the air and safeguarding workers. And need I remind you, McCain is out to overturn Roe v. Wade.

Pro-choice groups have been crying wolf for so long that it's hard to believe that the wolf is actually at the door. Or at least the border of South Dakota. There a full-tilt abortion ban on the November ballot with high-hurdle exceptions only for rape, incest and the life of a woman is pointed directly at Roe and targeted to arrive at the Supreme Court in time to greet a new justice. If what happens in South Dakota doesn't stay in South Dakota, a woman's right will depend on whether she has enough gas to drive to the next, or the next, or the next state.

Finally, if you want to know which candidate just plain values the Supreme Court, try checking out their first appointments, the vice presidents. Joe Biden has spent a career on the Senate Judiciary Committee.

Sarah Palin went blank when asked to talk about a single court case beside Roe v. Wade.

Ah yes, remember when only a few Cassandras warned that subprime mortgages and credit derivatives would affect everyday American life? We'll be paying for the next Supreme Court even longer. That's two branches of government down, folks, and one to go.

(c) 2008, Washington Post Writers Group

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Ellen Goodman is a member of the Washington Post Writers Group.

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