Sunday, September 28, 2008

Candidates' Potential Impact on the Supreme Court

This political column was published in The Sower, Sept. 24, 2008. Pictured below is far-left, pro-abortion Supreme Court Justice Ruth Bader Ginsberg, brimming with her usual youthful energy. This scene actually occurred!

McCain, Obama, What Difference Will they Make?

For all that has been said about John McCain’s old age, he’s a whippersnapper compared to some of the members of the Supreme Court. John Paul Stevens, the most liberal member of the Supreme Court, is eighty-eight years old. Ruth Bader Ginsburg is seventy-five, and has battled with cancer in her life. At seventy-two, John McCain is the same age as both Antonin Scalia and the all important swing-voter Anthony Kennedy. David Souter, who just turned sixty-nine, and Clarence Thomas, sixty, may be a few years younger than McCain, but they are also entering the “golden years.” Chief Justice John Roberts, fifty-three, and Samuel Alito, fifty-eight, were appointed by President Bush, and both demonstrate the impact the President can have by his choices for justices.

I asked my dad, Richard Duncan, the professor of Constitutional Law at UNL, how each Presidential candidate’s choices for Supreme Court justices would affect America. He believes that the next President will have far more influence on social issues than any recent President. “The next President may have an opportunity to fill two or three vacancies on the Supreme Court in the next four years, and if he serves for two terms, as many as five or six vacancies. Therefore, the most important issue in this election may be the Court, not the war, and not taxes, and not global warming.

Abortion is just one in a litany of social issues that the next President may affect. Cass Sunstein, a Harvard law professor, is convinced that the fate of Roe v. Wade will swing on this election. “…McCain, if elected, might well be able to get what the antiabortion movement wants – and more fundamentally, numerous changes in other areas of constitutional law as well,” he wrote in a column for the Boston Globe. Though others, including me, think that the reversal of Roe v Wade is highly improbable, the issue of abortion is not off the table. Stuart Taylor, Jr. is a reporter for the National Journal, who leans towards the pro-abortion side. Taylor quoted Obama, who said in July 2007 that “the first thing I’d do as President is sign the Freedom of Choice Act.” Despite his pro-choice views, Taylor is deeply concerned by the sort of judges Obama will appoint due to his far-left stance on abortion. “That nineteen-year-old proposal, which has never passed Congress, would nullify the popular law against federal funding of abortions; end the even more popular federal ban on ‘partial-birth’ abortion; and sweep away the broadly popular state laws requiring parental notification or consent (or judicial approval) before a minor can obtain an abortion and 24-hour waiting periods before any woman can obtain one.”

Though Prof. Duncan doubts that a McCain court would overturn Roe v. Wade, he is confident that an Obama court would “affirm and expand abortion-on-demand as a constitutional right, including a right to partial birth abortion. Furthermore, such a court would “create a constitutional right to homosexual marriage, a ‘right’ that would invalidate Nebraska's traditional marriage law as well as those of states across the country; interpret the Establishment Clause to forbid even passive religious symbols in public parks and schools, and perhaps even to forbid equal access for student Bible clubs to meet on campus in public schools; and expand the power of Congress to regulate in areas traditionally reserved for state and local government.”

On the other hand, a McCain court would probably be moderately conservative, without the drastic changes to the current law one would see under the Obama court. For example, even if Roe v. Wade were overturned, that would not outlaw abortion. It would merely return the issue to the state level, where compromises could be reached by our elected officials. Furthermore, according to Prof. Duncan, “Homosexual marriage would not be constitutionalized by a McCain court, but rather the institution of marriage would be left to the democratic process in each of the fifty states.” Do you think the moderate restrictions on abortions the American people have supported for the past 30 years should be respected? Do you believe in the traditional model of marriage, one that has served society well for thousands of years? Do you believe that the free exercise of religion includes the right to express our faith in the public square? Then bear in mind that “a McCain Court would likely adopt a view of the Establishment Clause that would forbid states from coercing citizens to participate in prayer or religious activities while allowing passive religious displays, such as Nativity displays and Ten Commandment monuments to be erected in parks and schools and courthouses.”

If you care deeply about any of these issues, know that the candidate you are supporting will affect these social issues dramatically. One way or the other.

(You can find Cass Sunstein’s article at, and the story by Stuart Taylor, Jr. on

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