The upcoming presidential election will shape the Supreme Court for decades to come. John Paul Stevens is 88, David Souter dislikes Washington and the 75-year-old Ruth Bader Ginsburg has been treated for cancer. One or more of these liberal Justices will probably leave the bench in the next four years. The replacement of one or two of them by a conservative would mean a rollback of key rulings of recent years.
Roe v. Wade has drawn the most attention, but many other liberal rulings of the past twenty years that were decided by 5-to-4 or 6-to-3 votes could be reversed. Even if these decisions are not overruled outright, conservative judges can obtain the same result by redefining what is protected, erecting procedural hurdles or forcing repeated expensive litigation. Here are some of the most important rulings that would be threatened by a McCain Court:
§ Abortion. To appeal to the religious right, John McCain promised to appoint more conservative judges like Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito, who would overturn Roe v. Wade. Some observers believe that these Justices would not jettison Roe outright, for fear of producing negative fallout for the Republican Party. But a McCain Court could eviscerate the law by adopting former Chief Justice William Rehnquist’s strategy of redefining the right to an abortion as a mere “liberty interest.” That would open the door for Congress or the states to enact virtually any restrictive legislation short of total abolition. Minors would be particularly at risk. Currently they can avoid having to get their parents’ consent as long as they obtain court approval, a difficult but not impossible hurdle; this option would probably be eliminated. It is also likely that the current protections for women against harassment when they go to abortion clinics would be eliminated or substantially weakened. A more conservative Court could also create a broad “conscience exemption” for pharmacists and other health workers who refuse to dispense emergency or other contraceptives, something right-wing religious groups have been urging in courts and legislatures around the country. The Department of Health and Human Services has proposed a regulation allowing such an exemption.
§ National security. Justice Anthony Kennedy was a key vote in Rasul v. Bush (2004), which extended American law to Guantánamo detainees, and the swing vote in Hamdan v. Rumsfeld (2006), which forced military commissions to comply with the Geneva Convention and the Uniform Code of Military Justice. He was also the swing vote in Boumediene v. Bush (2008), which granted detainees the right to habeas corpus. Should the dissenters pick up one more vote, Kennedy will lose that pivotal position.
§ Church-state separation. The Court banned official school prayer fifty years ago, but Christian-right groups still attack or ignore the ban. The margin for upholding the ban in a recent decision was 6 to 3; with Kennedy and the now departed Sandra Day O’Connor voting with the majority, those decisions are vulnerable. Religious groups have also pushed for the right to display religious symbols in public spaces. O’Connor was the swing vote in the Court’s most recent decision prohibiting such displays (McCreary County v. ACLU of Kentucky, 2005).