The next Supreme Court

October 04, 2004

THE BOSTON billboard captured in three succinct lines an issue that both presidential candidates rarely talk about, but one that every voter should focus on: appointments to the Supreme Court. The ad, sponsored by the Washington-based Committee for Justice, read: "Think! (About the Supreme Court) Kerry's Scary." The group People for the American Way would probably say the same of George W. Bush. The next president will likely have a chance to name at least one, if not two, Supreme Court justices, appointments that will shift the direction of the court toward the left or the right depending on the man in the White House.

Because the present court has decided controversial cases by the slimmest of margins, new justices could presage an overturning of those rulings. Because justices serve for life, their influence will be felt for decades.

The availability of abortion, vouchers for religious schools, patients' rights, harassment in the workplace, congressional redistricting, gay marriage, detention of enemy combatants, affirmative action in college admissions, severity of criminal penalties, environmental controls -- all these issues could be revisited by a new court. The difference between Bush and Kerry nominees would be judicial philosophy, not judicial qualifications.

Bush backers, especially Republicans on the far right, want justices who strictly interpret the Constitution, not "an activist court" that makes law. Democratic Party leaders worry about "right-wing" judges who they say are actively rolling back rights rather than protecting them.

Court vacancies are expected because of age and health. The retirement of Justice Sandra Day O'Connor, 74, could have a significant effect on court rulings because she has served as the swing vote, joining Justice John Paul Stevens, 84, and the three other liberals on key issues. Without the votes of Justices O'Connor and Stevens, decisions affirming the right of a Guantanamo detainee to challenge his indefinite confinement, outlawing the death penalty for mentally retarded people, restricting student-led prayer and protecting the privacy of sexual conduct at home would have gone the other way.

If nominees ideologically attuned to the court's most conservative justices, Antonin Scalia and Clarence Thomas, were to succeed Justices Stevens and O'Connor, government funding of church schools and private property rights would likely be enhanced, affirmative action and abortion rights diminished. Mr. Bush has singled out Justices Scalia and Thomas as his role models for the court, which has social and political liberals alarmed. Mr. Kerry, who has criticized litmus tests for judicial appointments, opened himself up to criticism when he vowed last year to block court appointees who didn't favor abortion rights.

No one can predict how a justice will vote -- Republican presidents appointed two of the justices considered liberal today. But a president's influence on the ideology of the court cannot be denied. The course the next Supreme Court takes will have a profound effect on citizen rights and privileges, the way Americans live, do business and govern.

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