The High Court: A President's Potential Impact

With the appointments of Chief Justice John Roberts and Associate Justice Samuel Alito, the Bush presidency has had considerable impact on the ideological makeup of the U.S. Supreme Court, tilting the American judiciary's highest office significantly to the right.

As the retirements of Justices John Paul Stevens and Ruth Bader Ginsburg seem imminent, according to most legal experts, the next president will have a crucial impact on the composition of the Court, ruling on various constitutional matters that affect real lives, be they on abortion or environmental law, and shifting the Court further to the right or returning closer to the center.

In the two sessions since Roberts and Alito took their seats, the Court has already voted on several key constitutional questions, such as reproductive rights, gun control, affirmative action, and gender discrimination. On all of these issues, the newly defined Roberts Court has ruled in favor of the strict constructionist jurisprudential outlook—victories for conservatives that suggest the emergence of a new majority bloc, working to reverse the liberal victories of the Warren Court, which expanded personal liberties among Americans.

In response to this shift, the usually reticent, even conciliatory, liberal Justices Stephen Breyer and Ginsburg have publicly criticized the Court's conservative direction in their dissenting decisions. After the conservative majority ruled against affirmative action to achieve integration in public schools, Justice Breyer said flatly "the plurality is wrong to do so" and that the Court's decision "threaten[s] the promise of Brown" to seek full racial equality.

In response to the Court's decision to uphold the congressional ban on partial birth abortion, Justice Ginsburg called the decision "alarming," noting the majority's "hostility" towards other viewpoints. She added that the majority's decision "reflects ancient notions of women's place in the family and under the Constitution—ideas that have long since been discredited."

Following the abortion case, Robin Toner of The New York Times reported, "Both sides in the abortion struggle predicted that the Supreme Court's decision on Wednesday would escalate the drive for new abortion restrictions in state legislatures and push the issue of abortion rights—and the Supreme Court—squarely into the 2008 presidential election."

Similarly, raising the stakes of the upcoming contest, Jeffrey Toobin, a Supreme Court historian and an analyst for CNN, agreed: "A Republican win in the 2008 presidential election could result in the overturning of the 1973 Roe v. Wade decision," Toobin recently remarked.

In stressing the importance of future nominees, Michael Dorf, a professor of law at Columbia University, said that in the next few years, the High Court will determine law on a range of unexplored jurisprudential subjects, such as regulation and use of the Internet, technology issues involving privacy, and the intersection of U.S. and international law (for instance, whether or not U.S. Courts are bound by the mandates of NAFTA tribunals, the Geneva Convention, and other treaties and acts of global law to which Congress has agreed).

Dorf said in an interview that he expected the next appointment battle to replace Stevens's seat will likely be "extremely contentious regardless of whether it's a Republican or Democratic in office." While he resisted the notion that there is more at stake for Democrats after Republican appointments of Roberts and Alito, noting that the Court's 5-to-4 decisions are still quite unpredictable, he admitted, "There's no question that a [future] Republican nominee would push liberal jurisprudence even more into dissent."

And among legal circles in the conservative Federalist Society or the pro-choice NARAL (National Abortion Rights Action League), the elephant in the room is still Roe v. Wade, the landmark 1973 case granting women a constitutional right to abortion. The future of this decision will depend on future Supreme Court nominees who fill vacancies in the next four to eight years and beyond.

In the next installments in this series on the 2008 presidential election and the future of the Supreme Court, the author explores the legal backgrounds and potential impact on the Court of the three party frontrunners: Democrats Hillary Clinton and Barack Obama, and Republican John McCain.

Read the rest of Scoop08's series on the High Court
Part 2: Clinton's Potential Impact on the High Court
Part 3: Obama's Academic Background Could Influence Court Picks
Part 4: Despite 'Maverick' Tendencies, McCain Judges Would be Consistently Conservative