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The Supreme Court as a Voting Issue:
Why Both Presidential Candidates' Positions are Disappointing


Thursday, Oct. 14, 2004

Control of the Supreme Court may well hang in the balance in the upcoming election - with the next President likely to appoint at least one and perhaps several Justices.

In light of this truth, is it too much to ask for these candidates to have something thoughtful and considered to say about the meaning of the Constitution, and about the role of the Supreme Court in interpreting that all-important document? Sadly, if the second debate is any indication, that remains a bridge too far.

Exaggerations, distortions, and spin aside, this presidential election campaign has contained intelligent discourse on any number of topics foreign and domestic -- and especially on the issue of national security. But the discourse about the crucial issues of the Supreme Court and constitutional interpretation, I will argue, has fallen far short of the relatively high bar the candidates have set on other issues.

The Candidates' Well-Articulated Positions on National Security

First, let's look at the candidates' respective positions on a few other topics. Laudably, when it comes to national security, Iraq and the war on terror, each candidate has articulated a serious, comprehensible vision. On these issues, voters can easily figure out what the candidates believe and why they believe it -- and align themselves accordingly.

President George Bush has made clear his commitment to an aggressive and significantly unilateralist approach to national security. This approach is based on the fundamental premise that ambitiously spreading democracy abroad is the key to winning the war on terror. With weapons of mass destruction out of the picture, the President now defends the invasion of Iraq mainly on that basis: creating a democracy in Iraq, will lead inexorably to more democracies in the Middle East, which will have the inevitable effect of suppressing terror.

In contrast, John Kerry's approach to national security and terrorism is substantially more alliance and United Nations oriented than the President's. Kerry questions the President's decision to invade Iraq, rather than simply to focus on catching Osama bin Laden. But beyond the question of focus, Kerry also raises an issue of approach: Kerry is plainly more cautious about hopes to reshape the world by replacing foreign despots with democratic regimes. He doesn't buy the President's domino theory of democracy - and he has made that plain.

In reaching their respective views, both candidates plainly have invested significant intellectual resources and have drawn on respected foreign policy traditions. Bush relies on the "Wilsonian/idealist" tradition. In contrast Kerry draws upon the "realist" tradition - though he does have his idealist moments, seemingly more likely to act in response to the human rights crisis in Sudan than Bush is.

To be sure, both candidates fall back on sound bites and focus-group tested attacks with depressing regularity. But it also clear that each of them has developed a set of genuine ideas and convictions about how to make the world safer for the next generation than it is for this one.

All this is welcome news to voters intent on casting their ballots based on the candidates' respective positions on foreign affairs and national security. But what about those of us who care deeply about the Supreme Court issue?

The Candidates' Poorly-Articulated Positions on the Supreme Court

Immense legal change - from the USA Patriot Act, to the new use of the "enemy combatant" designation, to the aggressive use of deportation in the war on terrorism, to much more - has occurred over the last four years. International law, which once seemed a dead letter, has proven itself alive and well, with the Geneva Conventions playing a prominent role at Abu Ghraib, and the U.N. Charter setting the benchmark for the legality of the Iraq invasion.

The Court has touched on some of these issues - and is likely to rule on many more in the next four years. The lower federal courts, too, have frequently been confronted them. Meanwhile, on the domestic front, key death penalty, gay rights, federalism, church/state, property rights, and other issues have - and likely will continue to - arise as well.

In this context - and with Roe v. Wade lurking in the background -- many voters care very much about which candidate has a deeper understanding of our Constitution. They also want to decide which candidate would better control the ideological future of the Supreme Court and the lower federal courts.

Here, however, is where the candidates have let us down. President Bush appears to know almost nothing about the Constitution and its judicial interpretation. Meanwhile, Senator Kerry does appear to have some command of the material -- but you would hardly know it, for he repeatedly pulls his punches for fear of offending some block of potential swing voters.

The Second Debate: Setting A Low Standard on the Key Topic of the Supreme Court

The second debate drove home this point. Consider, for instance, the moment when Bush was asked whom he would choose to fill a Supreme Court vacancy and why. Not surprisingly, Bush declined to name potential nominees, but he tried to give his criteria for selecting a new justice. He said that he "would pick somebody who would strictly interpret the Constitution."

Fleshing out this answer, Bush gave two examples of bad judging. First, he said that he would not pick a judge who thought the Pledge of Allegiance was unconstitutional because it contains the words "under God." Any judge reaching such a decision, he said, was not giving the Constitution a "strict construction" -- but was, instead, letting personal opinion dictate the decision.

As his second example, Bush invoked the Dred Scott case - "which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights. That's not what the Constitution says. The Constitution of the United States says we're all - you know, it doesn't say that."

This answer combines political gobbledygook with a distressing level of ignorance on the President's part.

The Problem with the President's "Strict Construction" Answer: What Does It Mean?

First, the gobbledygook. It has become a reflexive habit for conservative politicians to invoke "strict constructionism" as their preferred judicial philosophy. But while the concept of strict constructionism dates back to the early days of the Republic, these conservative politicians either don't really mean what they are saying -- or else they are endorsing a judicial philosophy of dubious pedigree and potentially radical implications.

Back in the 1820s, pro-slavery politicians such as John C. Calhoun invoked the concept of strict constitutional construction to support the notion that individual states could choose unilaterally to "nullify" federal laws. This philosophy laid the intellectual foundation for the secession of the South from the Union, and the subsequent Civil War.

More recently, "strict construction" has been the rallying cry of those who opposed the Supreme Court's decision in Brown v. Board of Education - which struck down the racist doctrine of "separate but equal." Also invoking the doctrine have been those who opposed such basic constitutional doctrines as the one-person/one-vote rule established in Reynolds v. Sims, the right to legal counsel in a criminal case established in Gideon v. Wainwright, and the right to remain silent in the face of police interrogation recognized in Miranda v. Arizona.

So just how far does Bush's strict constructionism go? Does Bush oppose Brown and these other rulings? And, if not, what does he mean by strict constructionism?

Truth be told, it is hard to believe to believe that Bush sincerely subscribes to this philosophy. After all, Bush's own favorite justice, Antonin Scalia, has described strict constructionism as a "degraded" approach that "no one" should follow. As Scalia recognizes, it is foolish for judges to interpret the Constitution "strictly." Rather, the document should be interpreted "reasonably" or "fairly" according to its history and overarching purposes.

Far more likely, Bush is invoking strict constructionism as a code. That is, he is invoking the term as a proxy for saying that he is opposed to Roe v. Wade -- a particular bete noir of strict constructionists -- and saying, as well, that he would appoint judges who share this opposition.

But if this is what Bush really means, he owes it to the electorate to say so forthrightly. Pro-choice Republicans, in particular, deserve to know whether they must sacrifice their pro-choice beliefs to vote for the President's re-election.

In addition, the President also owes it to the voters to give his true vision - not a political slogan - for how judges (and Presidents) should interpret the Constitution.

The Problem with the President's "Pledge of Allegiance" Answer: Ignorant of History

In addition to invoking strict construction, the President also suggested that a strict constructionist would not strike down the "under God" language in the Pledge of Allegiance. But that is simply not correct.

Strict constructionists look to constitutional language. The First Amendment says that "Congress shall make no law respecting an establishment of religion." This clause is subject to any number of interpretations, but using the word "strict" in no way illuminates how the words should be applied to the circumstance of the Pledge.

Indeed, if anything, a "strict" approach would probably strike down the compulsory "under God" pledge. After all, Congress made a law - in 1954 - inserting "under God" into the Pledge. Was that law - especially when combined with rules mandating that schoolchildren recite the Pledge -- "respecting an establishment of religion"?

Well, forcing schoolchildren to say "under God" sounds rather like compulsory prayer. And what is more an "establishment" of religion than a forced prayer? Seems like a strict constructionist ought to want to strike down the "under God" pledge - not uphold it.

Ultimately, reasonable minds may disagree about this issue. But interestingly, those who think the Pledge is constitutional tend to rely on historical exceptions - not "strict construction." The argument is that we have long accepted innocuous "ceremonial deism" - for instance, the "In God We Trust" that appears on our money. By this argument, the "under God" Pledge, with its fifty year history, also falls into this category. But those who support the constitutionality of the "under God" Pledge want to read in this exception - not to read the Constitution precisely as written, which is what strict constructionists demand.

In sum, President Bush is on shaky ground at best when he suggests that a strict constructionist would uphold the "under God" Pledge.

The Problem with the President's Invocation of Dred Scott

Finally, Bush's discussion of the Dred Scott case is even more troubling than his views on the "under God" Pledge. Bush misdescribed both the case itself, and the interpretive method used to reach its result.

Again, here's what Bush said: "[J]udges, years ago, said that the Constitution allowed slavery because of personal property rights. That's not what the Constitution says. The Constitution of the United States says we're all - you know, it doesn't say that."

In fact, the Dred Scott decision did not declare slavery constitutional because of
"personal property rights". Rather, the decision declared that blacks, whether slave or free, could not be citizens of any state or of the United States. It also declared that Congress had no authority to ban slavery in the federal territories.

Now, no one should expect the President or a presidential candidate to display the constitutional acuity of a law professor or judge. But it really should not be too much to ask that a candidate speak in a fashion suggesting a basic understanding of constitutional history.

What about Bush's claim "That's not what the Constitution says"? That's not true either. At the time, the Constitution did countenance slavery in numerous insidious ways, including the notorious "three-fifths clause" by which slave states secured overrepresentation in the House by counting slaves as three-fifths of a person. And the main reason it did so was to protect the economic interests and "property rights" of southern slaveholders. It took a Civil War and the Thirteenth Amendment to change this.

Nor should it be too much to demand that, if a candidate is going to invoke the most odious Supreme Court decision in American history, he should correctly describe what the Supreme Court actually did and the methods used.

Ironically, Dred Scott is an example of the very interpretive method Bush endorses: strict constructionism. In fact -- as the authoritative historian of Dred Scott, Don Fehrenbacher, has observed -- Chief Justice Taney's opinion for the Court relies heavily on strict constructionism to reach its morally repugnant result.

Surely, if either candidate had provided such an inaccurate and problematic answer to a question regarding foreign policy, the media and the other candidate's team would be jumping all over the gaffe. Remember President Gerald Ford mistakenly saying that Poland was not under the domination of the Soviet Union. That mistake hurt him badly against Carter.

Why should blunders about the Constitution and its history matter less than foreign policy blunders?

Kerry's Strategy: Pulling Punches So as Not to Sound "Too Liberal"

In his rejoinder to Bush, however, Kerry did not present much of a counter-vision for the Court. Instead, he mainly dispensed the pabulum on which more liberal candidates usually rely: He said he was not looking for conservatives or liberals to put on the Supreme Court, but rather judges distinguished by their well-reasoned opinions.

It's hard to argue with the sentiment, but it also does not tell us very much. All we really know from Kerry's other comments is that he supports Roe and a woman's right to choose. That's more of a political strategy than a vision for how the Constitution should be read - or so one must hope given Roe's thin constitutional underpinnings.

Kerry's answer, though, speaks volumes about the predicament that legal progressives find themselves in. Conservatives have succeeded in making progressives embarrassed to admit many of their positions - for instance, their beliefs that the Constitution permits affirmative action, protects gay rights, restricts the death penalty, bans prayer in public schools, and is skeptical of restrictions on civil liberties.

Who Are Kerry's Supreme Court Heroes? Voters Should Know

Even within the bounds of political calculation, it would have refreshing for Kerry to have drawn out the profound differences between Bush's judicial heroes (Scalia and Clarence Thomas) and his own, whoever they might be.

Kerry need not, of course, choose Earl Warren or William Brennan. What about lauding the current Court's Justice Anthony Kennedy - a staunch Republican who is nevertheless often a passionate defender of rights, including gay rights? Or what about the Justices who finally did make the "switch in time" that allowed FDR's New Deal to go forward? Or the Justices who made sure the First Amendment meant what it said - Black, Frankfurter, and Brandeis?

There is a progressive vision of the Constitution that is not political poison. In that vision, the Executive Branch does not have carte blanche to lock up citizens, even citizens suspected of helping terrorists, without some judicial check. In that vision, the federal government maintains broad powers to solve the problems of the environment even at some expense to property owners, and citizens enjoy the right to sue their states when those states violate federal laws. In that vision, the idea of a "colorblind" society is recognized as a goal, but is not deemed a reality. And in that vision, a main purpose of the Constitution is to resist the power of the majority to foist any orthodoxy - religious or intellectual - on the rest of the nation.

Conservative thinkers, naturally, have their own vision - much more powerful than the one Bush tried to describe - for what the Constitution should be read to mean. They, too, should ask for a better articulation of this vision from their candidate.

We are deeply and closely divided over what kind of nation we want to be and what kind of leader we want to take us there. In light of this deep divide, the candidates owe us a much better explanation of what meaning they give to the Constitution that created and still guides the nation - and what kind of people they would put on the Court that is the arbiter of its fate.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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