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September 21, 2008

"The Candidates and the Court"

The title of this post is the headline of this editorial today in the New York Times.  Here are snippets:

Among the many issues voters need to consider in this campaign is this vital fact: The next president is likely to appoint several Supreme Court justices. Those choices will determine the future of the law, and of some of Americans’ most cherished rights.

John McCain and Barack Obama have made it clear that they would pick very different kinds of justices. The results could be particularly dramatic under Mr. McCain, who is likely to complete President Bush’s campaign to make the court an aggressive right-wing force....

Mr. McCain has promised the right wing of the Republican Party that he would put only archconservatives on the Supreme Court. Even moderate conservatives like Anthony Kennedy, the court’s current swing justice, would not have a chance....

Mr. Obama has put distance between himself and legal liberals on issues like the death penalty for child rapists and the constitutionality of gun control.  As president, Mr. Obama would probably be more inclined to appoint centrist liberals, like Justice Stephen Breyer, than all-out liberals, like William Brennan or Thurgood Marshall.

Though I fully agree more that the 2008 election is very important for the future of the Supreme Court, the spin is in with this Times editorial.  As constitutional lawyers know, Justice Breyer has typically voted like Justices Brennan and Marshall on the death penalty.  And, I like to think a true "legal liberal" committed to individual rights would have voted with the purportedly "conservative" Second Amendment decision in Heller.  And, of course, these labels lack any real content when we look at rulings like Blakely and Booker and Rita and Kimbrough.

Of course, I do not really expect the New York Times editorial page to be as legally accurate as it is politically astute.  And the editorial certainly does set out the kinds of SCOTUS political talking points we may see if these issues ever become the focal point of serious discussion on the campaign trail.

UPDATE: Orin Kerr has this interesting new post at Volokh responding to the NY Times piece asking "Would Obama Nominate A Breyer or a Brennan?".

September 21, 2008 at 11:35 AM | Permalink


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Breyer is most definitely a soft centrist liberal. He is not a Brennan or Marshall, nowhere close. That includes on the death penalty, in which the latter two Justices deemed it unconstitutional in all instances. Breyer has never so much as hinted at taking that position, nor do I expect him to. Remember, Brennan and Marshall were well to the left of Stevens, who is hands down the most "liberal" member of the current Court. The editorial is more accurate than your assessment. There currently are *no* liberal or left Supreme Court justices, just center-left to extreme, hard right.

Posted by: DK | Sep 21, 2008 2:26:15 PM

Personally, I think these labels are stupid. The truth of the matter is that most judges have some type of judicial philosophy to which they conform and the outcome of that philosophy when applied to specific cases is not always self-evident. There is no direct correspondence between a "liberal" judicial philosophy and a "liberal" political position. I'm actually a good example of that. With a few exceptions, I actually have a lot in common with Justice Scalia. Yet I often use the same facts and the same logic to come to a different judgment.

The person whose judicial approach I like the least is actually Breyer. And I throughly detested O'Conner when she was on the court.

Posted by: Daniel | Sep 21, 2008 10:11:43 PM

I have to agree wrt to Breyer and O'Conner, both seem extremely fond of complex balancing tests that lend themselves to whatever outcome the judge prefers. Bright line rules that are wrong are better than such a regime, at least with incorrect bright line rules there is a chance that the wrongness will be noticed and work done to correct it.

Posted by: Soronel Haetir | Sep 21, 2008 10:17:59 PM

Labeling Marshall liberal was just a conservative meme to attack liberal programs like prevention and rehabilitation efforts. As a former prosecutor, Marshall was liberal like Dallas County District Attorney Craig Watkins is a liberal. No wonder conservatives are avoiding making crime the big issue.

Posted by: George | Sep 22, 2008 11:45:02 AM

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