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In McCain's court

John McCain plans to continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court.
Tom Bachtell / The New Yorker
/ Source: The New Yorker

Successful politicians know how to attract attention, and how to avoid it, so it’s worth noting that John McCain chose to give his speech about the future of the judiciary on May 6th, a day when the political world was preoccupied with the Democratic primaries in Indiana and North Carolina.

It is significant, too, that Senator McCain spoke mainly in generalities, rather than about such specific issues as abortion, affirmative action, and the death penalty. But even if he hoped to sneak the speech past a distracted public, and have its coded references deciphered only by the activists who were its primary target, its message should not be lost on anyone. McCain plans to continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court.

McCain began the speech, at Wake Forest University, in Winston-Salem, North Carolina, with a paean to the wisdom of the framers of the Constitution in establishing the separation of powers. “The executive, legislative, and judicial branches are often wary of one another’s excesses, and they should be,” he said, before adding, in a comforting way, “The system of checks and balances rarely disappoints.”

Still, he warned against complacency, because “there is one great exception in our day” to the smooth functioning of the separation of powers. This is surely true: the Bush Administration has sought to expand executive power in an unprecedented manner, especially with respect to the President’s ability to authorize torture, ignore the Geneva conventions, and order the surveillance of citizens.

But that was not what McCain had in mind. Instead, he pronounced that the great exception “is the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges.” This, of course, is a view functionally identical to President Bush’s often expressed contempt for judges who “legislate from the bench.” McCain then cited what he saw as an example of such abuse. “Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the state of Missouri,” he said. “As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and ‘evolving standards of decency.’ These meditations were in the tradition of ‘penumbras,’ ‘emanations,’ and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning.”

The giveaway here was that McCain did not reveal the subject matter of this supposed judicial outrage. The case was Roper v. Simmons, in which a seventeen-year-old boy murdered a woman after breaking into her home, and was sentenced to death. Justice Anthony M. Kennedy’s opinion overturned the sentence and held that the Constitution forbids the death penalty for juvenile offenders. McCain’s reference to the Court’s “discourse” on the law of “other nations” refers to Kennedy’s observation of the “stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Likewise, Kennedy noted that the only other countries to execute juvenile offenders since 1990 have been China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen. According to McCain, the United States apparently belongs on this dismal list.

Nor were his references to penumbras and emanations accidental. Those words come from Justice William O. Douglas’s 1965 opinion for the Court in Griswold v. Connecticut, in which the Justices recognized for the first time a constitutional right to privacy, and ruled that a state could not deny married couples access to birth control. The “meaning of life” was a specific reference, too. It comes from the Court’s 1992 opinion in Planned Parenthood v. Casey, which reaffirmed the central holding of Roe v. Wade, and forbade the states from banning abortion. In short, this one passage in McCain’s speech amounted to a dog whistle for the right—an implicit promise that he will appoint Justices who will eliminate the right to privacy, permit states to ban abortion, and allow the execution of teen-agers.

The question, as always with McCain these days, is whether he means it. Might he really be a “maverick” when it comes to the Supreme Court? The answer, almost certainly, is no. The Senator has long touted his opposition to Roe, and has voted for every one of Bush’s judicial appointments; the rhetoric of his speech shows that he is getting his advice on the Court from the most extreme elements of the conservative movement. With the general election in mind, McCain had to express himself with such elaborate circumlocution because he knows that the constituency for such far-reaching change in our constellation of rights is small, and may be shrinking. In 2004, to stoke turnout among conservatives, Karl Rove engineered the addition of anti-gay-marriage voter initiatives to the ballots in Ohio and other states; last week, though, when the California Supreme Court voted to allow gay marriage in that state, only hard-core activists were able to muster much outrage. When it comes to the Constitution, McCain is on the wrong side of the voters, and of history; thus, his obfuscations.

Still, the Bush-McCain agenda for the courts has made great strides. Bush’s conservative appointees to the Supreme Court—John G. Roberts, Jr., and Samuel A. Alito, Jr.—have joined Antonin Scalia and Clarence Thomas in a phalanx that is more radical than any that the Court has seen since F.D.R.’s appointments. Those Justices allowed the New Deal to proceed, and set the stage for the noblest era in the Court’s history, under Chief Justice Earl Warren, when the civil and individual rights of all citizens finally received their constitutional due. By contrast, in just three years the Roberts Court has crippled school-desegregation efforts (and hinted that affirmative action may be next); approved a federal law that bans a form of abortion; limited the reach of job-discrimination laws; and made it more difficult to challenge the mixing of church and state. It’s difficult to quarrel with Justice Stephen Breyer’s assessment of his new colleagues: “It is not often in the law that so few have so quickly changed so much.” And more change is likely to come. John Paul Stevens, the leader of the Court’s four embattled liberals, just celebrated his eighty-eighth birthday; Ruth Bader Ginsburg is seventy-five; David Souter is only sixty-eight but longs for his home in New Hampshire. For all the elisions in John McCain’s speech, one unmistakable truth emerged: that the stakes in the election, for the Supreme Court and all who live by its rulings, are very, very high.