Subscribe to Breaking News
Loading ...Next president to influence courts for decades
11.04.2008 1:40am EST
(Washington) It has gained little attention in the presidential race, but whoever wins will have a profound influence on the nation’s judiciary from the Supreme Court to federal courts.
With four of the nine Supreme Court justices in their 70s and one in his 80s, at least two – and possibly all four – are likely to retire during the next president’s first term. Whoever is appointed to the high court will tip the balance either further to the right, or create a liberal court.At stake could be Roe v. Wade, the 1973 Supreme Court ruling legalizing abortion, and possibly a number of LGBT issues such as marriage and “Don’t Ask Don’t Tell,” the ban on gays serving openly in the military.
McCain has promised the Republican base he would appoint conservative justices like John Roberts and Antonin Scalia. No LGBT issues have come before the court since Roberts was appointed, but Scalia in speeches has attacked gay rights and was one of the dissenters in Lawrence v. Texas, where the court overturned state laws against sodomy in 2003.
Writing for the minority that also included then-Chief Justice William H. Rehnquist and Justice Clarence Thomas, Scalia wrote, “The court has largely signed on to the so-called homosexual agenda … The court has taken sides in the culture war.”
In a 2006 speech at the University of Freiberg in Switzerland, Scalia said that the court should revisit the case.
“Question comes up: is there a constitutional right to homosexual conduct? Not a hard question for me,” said Scalia. “It’s absolutely clear that nobody ever thought when the Bill of Rights was adopted that it gave a right to homosexual conduct. Homosexual conduct was criminal for 200 years in every state. Easy question.”
In 2004, he told students at at Presbyterian Christian School that gays have no rights under the Constitution.
Scalia is a strict constitutionalist, believing that if it is not specifically mentioned in the constitution, the Supreme Court should not take a case.
Obama’s position on the high court differs widely from that of McCain and Scalia.
Obama has said he would appoint judges with empathy for others, and whose experiences have shaped their judicial philosophy.
In the Senate, Obama voted against two of the Bush administration appointments to the Supreme Court, Chief Justice John Roberts and Justice Samuel Alito.
The next president also will appoint judges dozens of vacancies in federal courts across the country. It is in federal court that most LGBT rights cases are heard, and appointments to the federal bench could have a profound effect on the future of issues from DADT to hate crime laws and local and state human rights laws.
But the future of the courts is not just up to the next president. Appointments must be confirmed by the Senate. A GOP majority or even strong minority in the Senate could tie up appointments for years.
With you all the way, Sarrellec – with another constitutional route that could arguably get us to the same location, if Lawrence were ever to come under threat. Namely: the Ninth and Tenth Amendments, read in conjunction with one another.
I can’t recall the exact text verbatim, but these Amendments’ concepts are essentially: A) Rights not expressly granted to the Congress are reserved to the states respectively, or to the people… and B) the enumeration of specific rights herein shall not be construed to deny or disparage other rights retained by the people.
These Amendments constitute nothing less than a flat-out rejection of Scalia’s apparent requirement that a given behavior or characteristic must be mentioned verbatim in order to merit constitutional protection. On the contrary, they suggest that either federal or state governments would have the onus of proving that the measures alleged infringing lie within their respective powers! “Reserved to the States or the People” is a restatement of the basic constitutional principle that Congress has only its limited, defined powers… and “shall not be construed to deny or disparage” arguably establishes a similar limiting principle for state governments. If a given measure that denies or limits rights doesn’t fit specifically into a power held by the states, it will arguably infringe this broad residuary clause.
Practically speaking, this argument is going to be a hard row to hoe because there’s almost no jurisprudence of ANY kind around the Ninth or Tenth Amendment (though some of the concurring Justices in cases like Griswold and Eisenstadt – the early contraceptive-rights cases – mentioned these Amendments as significant bases for their reasoning). But we may well have to break some novel ground in order to protect our rights when they’re threatened…
To correct my prior comment, to appoint judges with more empathy for others is what i am hoping for. But Civil Rights is just that. and the law is the law. The drums are beating in Mississippi.
I am headed to the U.S. Supreme Court with my particular case out of Mississippi. I am looking forward to a more empathy. Level heads in the 21st century will prevail. Change is almost here.
Why is scalia in the US Supreme Court when he apparently needs to be in a mental hospital?
This article really surprised me. First “the court issue hasn’t gained attention in the presidential race”…are you kidding? It is perhaps 30% of the chatter I hear. I heard it discussed in the debates, has been all over our local editorial page including letters to the editor, and is the single reason many people I know are voting one way or the other. I constantly here reporters say things like “most people aren’t aware of this…”…am I more informed or are they talking down to us?..I don’t expect that from this site.
Second: This is the FIRST and ONLY place I’ve seen it reported that the court could go liberal. Unless someone has recently gotten sick, I keep hearing that an Obama presidency will ONLY protect the current 3 or 4 liberal (depending on how you pigeon hole them) seats while a McCain presidency would replace liberal with conservative. So as I’ve read this issue nothing much would change under Obama and the court would go right-ward under McCain.
Posters please set me straight if I’ve missed something.
Now a comment to those attacking Scalia. You are all correct in his positions but we need to point out a couple things: We have a strong Catholic wing on this court now with Bush’s appointees. Scalia is a liar. He says he is a strict constructionist but in actuality many of his positions are in support of the Pope’s positions. Similarly if you believed Roberts’ testimony you would not expcect him to have voted to uphold the abortion ban that he did with no clause for woman’s health (can’t remember if it was Arkansas or Alabama’s law that was challenged). The constitution affords a right to privacy and other things that Roe was based on. He said he respects the history of the court AND some of the rights enumerated in the constitution that would lead a reasonable person to uphold abortion rights. Well, he voted with the Pope. I was actually surprised.
Back to Scalia, if he is correct about sodomy, then why isn’t ALL sex illegal? The constitution does not give an explicit right to sex. It gives a right to privacy, and as one poster says here it gives rights that one person has to all people. You can’t allow straight sex and dissallow gay sex. He is a religious bigot with a mission based on ideology. I could live with an (educated) constructionist. We can’t take more ideologs..by the very definition of that, they don’t think..they follow ideology.
If we didn’t want our justices to think, wouldn’t we just right some code that cases went through? A Vlookup so to speak. Is abortion mentioned? nope..leave it up to the states then.
This is a huge issue and simply is not something that hasn’t been discussed in this election. Perhaps this reporter is suffering from the same fatigue I am, and only remembering the last sound bite. This has been a 2 year campaign and a lot has been discussed…please try to remember that.
Scalia did what they all do: Altered the argument to something irrelevent.
Whether or not homosexual conduct is constitutionally protected is NOT the question.
The question is about enforcing the 14th Amendment which defines a citizen as a PERSON and guarantees that citizen as a person equal protection under the law.
This means, of course, ANY law which identifies a citizen of the United States by gender or any other sub-category is unconstitutional.
As it should be.
The Constitution, the Declaration, the 14th Amendment. Civil Rights bills repeatedly…
ALL of these documents profer the concept of equality and equal treatment/protection under the law.
AND YET, EVERY identifiable sub-group besides landed white christian heterosexual males has had to take to the streets, risking their lives, livelihoods, families and freedom in order to actually GET that equal protection.
Including gay citizens.
In short: This “democracy” business is now and always has been a collossal joke.
The USA is now and always has been an Oligarchy for the benefit of landed white christian heterosexual males.
And the tooth fairy really does not exist.
“‘Question comes up: is there a constitutional right to homosexual conduct? Not a hard question for me,’ said Scalia.”
Simplistic comments like this one from Scalia raise the question of where he got his reputation as a formidable intellectual. Such black-and-white thinking is founded in his fundamentalist views of the Constitution. Like biblical fundamentalists, he refuses to interpret the document outside of the context of its origins: a mostly rural, white, sparsely-populated, pre-scientific era.
A genuine intellectual would understand that the Constitution should be interpreted in the context of the present in order to remain a living document that supports the changing needs for freedom in our era.