President Kerry and His Court

Nathaniel Stewart

August 1, 2004

Supreme Court appointments are perhaps the highest stakes in a high stakes town, and the odds are good that whoever sits in the White House come January will have the chance to double-down. Many believe that the next President of the United States will likely appoint at least two—and perhaps up to four—Supreme Court justices. As the Boston Globe has reported, "Justice Ruth Bader Ginsburg, 71, has battled cancer since 1999. Justice John Paul Stevens is 84. Chief Justice William Rehnquist, 79, and Justice Sandra Day O’Connor, 74, are said to have eyed retirement for several years." It is time to consider just what cards President Kerry might deal to the federal bench.

Divining how judges and justices are likely to rule in the future based on their earlier writings and decisions, of course, is no easy trick. As former White House Counsel, C. Boyden Gray testified before a Senate Judiciary Subcommittee, "[i]deology and party identification have never been very good benchmarks for ascertaining how a judge will decide future cases in controversial areas. There are seven Republican appointees on the current Supreme Court. Two of them are among the most liberal justices of the century, and most of them have supported the Court’s decisions upholding Roe and striking down state partial birth abortion statutes." Lest we forget, the author of Roe v. Wade was a Republican appointee, while Justice Byron White, a Roe opponent and a generally more conservative jurist, came courtesy of the original JFK.

Having been rated by the National Journal as last year’s most liberal senator in a Senate that boasts liberal luminaries Ted Kennedy, Carl Levin, and Hillary Rodham Clinton, it is reasonable to think that left to his own devices John Kerry would relish the opportunity to perch radical judges like Stephen Reinhardt of the Ninth Circuit Court of Appeals high atop the nation’s Third Branch. Kerry undoubtedly shares Reinhardt’s view that today’s Supreme Court is "just one vacancy away from becoming ‘monolithically conservative,’" and covets the power to entrench a monolithic liberalism.

Smart money says Judge Reinhardt is so far outside the judicial mainstream that he would fail to garner the sixty Senate votes needed to rise to the next level, but it is safe to suppose that President Kerry would be at least as successful as former President Clinton was in dealing us Justices Ruth Bader Ginsburg and Stephen Breyer—both left-of-center jurists, one a long-time ACLU activist prior to her service on the bench. Is it really realistic to expect less from Kerry, or more from the Senate?

Kerry has touted his record for voting to confirm "any number of judges who are pro-life or pro-something else that I may not agree with"—Justice Scalia included—as if this indicates an open-mind on these matters. But the power to appoint and the power to cast one percent of the confirming votes are two different things, and there is reason to suspect that far from appointing "pro-something else" judges, President Kerry has already formulated a series of litmus tests for his judicial nominees.

Addressing an Iowa law school, Kerry criticized President Bush for politicizing the judiciary by "looking to get good, conservative judges appointed to the bench." Of course, Kerry went on in the very same speech to condemn "a disturbing trend in our judicial system" whereby courts, he said, have questioned the constitutionality of a number of federal mandates and "have continued to steadily erode the right to choose." As remedy, his campaign materials boldly pledge to "only nominate individuals to the federal bench whose records demonstrate a respect for the full range of constitutional rights, including the right to privacy and the right to choose." To be sure, these comments belong to Candidate Kerry, not President Kerry. But do they really sound like a president prepared to appoint Article III judges who are pro-anything that John Kerry is not?

Assuming arguendo that a Kerry-Edwards appointee will join with the less conservative justices on the Court more often than not, we might consider what a Court with two Breyers instead of a Breyer and a Rehnquist might mean. Indeed, what might such a Court have meant in any number of 5-4 split decisions over the past several years?

Recognizing that this entire discussion has more variables than a calculus final, and, of course, that either Justice Stevens or Ginsburg could be the next to retire, it is nevertheless worth noting how important 5-4 decisions would have turned out if there had been even one more justice siding with Ginsburg and Breyer.

In 2002, the Supreme Court’s decision in Zelman v. Simmons-Harris came within one robed vote of nullifying Ohio’s pilot school-choice program designed to provide educational free-will to Cleveland’s low-income families through tuition assistance for students to attend a participating public or private elementary school of their parent’s choosing. The Court found the program entirely neutral with respect to religion, providing benefits to a wide spectrum of individuals defined only by financial need, and allowing parents a genuine choice among secular and religious options. Justice Ginsburg and Justice Breyer, however, were unwilling to say Amen. Instead, they were prepared to deny an impoverished mother her educational choice for her daughter, all because the majority of the participating schools were religiously affiliated. Lord, have mercy.

United States v. Lopez was the first Supreme Court decision in decades to challenge the federal government’s authority to impose laws by invoking the Constitution’s Commerce Clause, an authority that up until then had nearly become Congress’s plenary police power by which virtually every aspect of American life could be regulated in the name of "interstate commerce." The case was decided 5-4 and breathed life into a judicial federalism that recognizes that "[t]he Constitution requires a distinction between what is truly national and what is truly local"—a distinction the Left, along with Ginsburg and Breyer, has long been unwilling to make.

Just last year, the 5-4 decision in Ewing v. California, upheld California’s popular "three-strikes law" in large part because, in the words of one critical law professor, "the majority took very seriously [the question]: Is it the place of the federal courts, according to the Constitution, to act as an oversight committee for state criminal punishments? Is it the proper role of the U.S. Supreme Court, interpreting the U.S. Constitution to set themselves up as a policy review board for California criminal law, opining on which penalties are fitting, and which are too great?" The majority said no; Justice Breyer and Justice Ginsburg said yes. Likewise, whatever one thinks of the death penalty, its constitutional moorings are clear and yet Ginsburg and Breyer have consistently threatened to overturn the will of the States by voting to undermine their use of capital punishment at almost every turn.

In any number of decisions, subtracting an O’Connor and adding a Ginsburg, for example, or replacing a Rehnquist with a Breyer, would have resulted in a fundamentally different legal, and in some cases, cultural landscape.

Although U.S. courts are empowered to resolve cases, not issues, we can reasonably assume that the broader, underlying issues at stake in the coming presidential term are almost certain to include gay rights and marriage (Kerry was one of only fourteen senators to vote against the Defense of Marriage Act in 1996), enemy combatants and national security (Kerry voted against appropriating funds for the service men and women in Iraq), partial birth abortion (Kerry has never voted to restrict any abortion procedure), and physician-assisted suicide (Kerry has supported Oregon’s legalization), to name but a few.

These are the stakes likely to face Kerry and his Court, and I’d bet that his Court-of-choice would ante up with Ginsburg and Breyer any day of the week, and twice on First Mondays.

Nathaniel Stewart is an adjunct fellow at the Ashbrook Center for Public Affairs at Ashland University.