McCain's Remarks Regarding the Kind of Judges He Would Nominate As President: His Surprising Failure to Take Into Account the Rightward Turn of the Supreme Court and of the Law in Recent History

This week, Senator John McCain sought to shore up his support among conservatives by talking about what kinds of judges he would nominate if elected President.

In one sense, McCain's remarks were completely predictable. For as long as I can remember, GOP candidates have used attacks on the judiciary as a bloody shirt to galvanize a right-wing base for which overturning liberal precedents, especially Roe v. Wade and decisions excluding prayer from public schools, remain passionate priorities.

In a speech that could just as easily could have been given by any GOP presidential nominee since Barry Goldwater, McCain went on the usual GOP diatribe against "activist" judges – meaning elitist, unelected liberals who impose their personal political perspectives on the country, rather than simply interpreting the laws in a neutral way.

McCain, of course, offered his alternative, which proved to be exactly the pat answer that could be expected: He invoked Chief Justice John Roberts and Justice Samuel Alito -- conservative heroes for the consistently conservative positions they have taken on the Court -- as exemplary jurists who practice judicial restraint and who don't impose their own values on the Constitution and reshape the law accordingly.

In another sense, however, McCain's remarks ought to strike us as surprising. McCain is making the same speech that Republican candidates have made for something like 40 years. Yet the Supreme Court and the whole landscape of Constitutional law have changed dramatically during this period, as the legacy of the Warren era has been dinged and dented and, in some instances, scrapped altogether.

Thus, the old fault lines are just that – old, dated, and largely anachronistic. Oddly, however, they still dominate our discourse about law and the judiciary. That ought to be surprising – shocking really given the importance of the subject matter. But we accept it as expected and routine.

McCain's Two Examples of Supposedly Outrageous Liberal Activism

To understand the point, one need look no farther than the two examples of allegedly outrageous liberal activism that McCain cited. His first target was the "under God" decision – the much-debated U.S. Court of Appeals ruling that, under the constitutionally-mandated separation of Church and State, the state cannot force public elementary school student to recite the Pledge of Allegiance, at least insofar as the Pledge describes the United States as one Nation "under God".

It isn't hard to see why McCain chose this case. It pits godless liberalism against God and Country, all in one fell swoop. As a legal matter, although the decision was written by Judge Ted Goodwin, a moderate Republican appointed by President Richard Nixon, it extended the line of classically "activist" cases, dating back to the Warren era, that takes a fairly hard line against religious observance in public schools, especially at the elementary school level.

But let's face it, this is pretty thin gruel. The decision only lasted as long as it took for the Supreme Court to grant review and vacate it. So McCain's campaign to reshape the judiciary is importantly hinged on a decision that has been erased from the books by a conservative- dominated Supreme Court and that exists as part of the culture wars, but not as a meaningful part of the legal landscape.

The second decision McCain trumpeted was Roper v. Simmons, where the Supreme Court, by a narrow margin, struck down the death penalty for juvenile offenders as no longer consonant with our "evolving standards of decency." I suppose it is reasonable to describe this as an activist decision, too. After all, it overturned a practice still endorsed by a few elected state legislatures.

But, again, it's awfully hard to make the case that the Roper decision is emblematic of much of anything, other than a ratification of the disdain for juvenile executions that is shared by the vast majority of states, as well as almost every country in the word.

To be sure, Roper does not reflect some new "activist" anti-death penalty sentiment on the Supreme Court.

Just last month, the Supreme Court just rejected a challenge to the three-drug lethal injection cocktail that most states use to carry out the death penalty. And before the summer recess, the Justices are likely to allow the execution of child rapists, even though, for decades, many have thought that the Constitution reserved capital punishment for the crime of murder.

McCain's Woeful Examples of Supposed Liberal Judicial Activism Only Underline that Such Activism Is in Short Supply

There is an obvious reason why McCain could muster only scant evidence for his rant against liberal judicial activism: Liberal judicial activism, as McCain invokes the term, has been dying for a long time and is now pretty close to dead. The Supreme Court is decidedly conservative and will likely remain so for the foreseeable future.

Indeed, to the extent that there is a genuine problem with judicial activism (and I don't actually think "activism" per se is either good or bad – it depends on the justification provided), the problem today can only be with conservative judicial activism. For 20 years now, the more conservative wing of the Supreme Court has been striking down legislation and overturning precedent at a near-record pace. The number of liberal activist decisions during the same period is negligible by comparison.

Of course, we all know why McCain is going through this charade. Without directly saying so, he wants to signal to conservatives that he'll appoint judges hostile to Roe v. Wade. All the stuff about activist judges is simply code for this message.

The Cost of Dwelling on a Non-Issue, When Real Issues Regarding America's Law and Courts Are Pressing

But continuing the same old talk about the judiciary, regardless of how markedly things have changed over the last several decades, does come at a cost. There are a host of real issues to be discussed; dwelling on this non-issue as if it were overwhelmingly important puts those real and, in some cases urgent, issues in the shadows.

In thinking about judicial appointees, what will the next President's attitudes be towards Executive power, the scope of Executive privilege, or the trade-offs to be made between national security and personal privacy? What role should the judiciary play in tort reform? In the age of globalization, to what extent should U.S. courts be enforcing international legal norms, including international commitments to human rights? To what extent does the First Amendment preclude meaningful campaign finance reform – which all the remaining candidates claim to support as essential to repairing our democracy? Does the Constitution really mandate a color-blind society?

The list goes on and on – but rarely breaks through the dreary repetition of old clichÈs. Folks say that this is a "change" election; it's an Obama slogan, but an idea that has been pressed by Clinton and McCain as well. Our political dialogue about judges and constitutional law is one place in which this change would be truly welcome.