Gore’s warning was an exaggeration, to say the least. In fact, six of the nine current justices have supported fairly broad abortion rights. Still, Bush chose to downplay the decision, wary of being dragged into an abortion brawl that could put him on the wrong side of public opinion, sending moderate voters–especially women–fleeing. But he couldn’t avoid the matter entirely: Bush issued a terse statement saying he would “fight for a ban on partial-birth abortion.” Later in the week he cut a deal to keep the GOP’s hard-line anti-abortion plank in the party’s platform.
All week, the slew of decisions and emotional dissents handed down from the red-draped chamber of the Supreme Court reverberated across the country. The justices curbed the rights of anti-abortion protesters, allowed the Boy Scouts of America to bar gay men as Scoutmasters and reaffirmed that police must keep reading suspects the famous Miranda warnings. In some cases–including a decision allowing public money to be used to buy computers and books for parochial schools–the conservative justices won. Yet the court clearly demonstrated that it is hardly the cadre of rigid conservatives some in the press make it out to be. In several recent rulings, the justices seemed downright liberal, as in their unpopular decision barring student-led prayers at public-school football games.
The nine justices are often said to be split into two ideological camps: the five conservatives versus the four liberals, which helps explain why the court is so often divided 5-4. But, in fact, two of the so-called conservatives–Sandra Day O’Connor and Anthony Kennedy–are relatively centrist, usually taking positions remarkably in sync with (and sometimes to the left of) public opinion. Shifting alliances are common, with conservatives joining liberals in high-profile cases. In one, the court struck down an act of Congress curbing sexually explicit cable-television programming that might be seen by children. In another, it stressed that “grandparents’ rights” laws can’t interfere with a parent’s rights to raise his or her children.
In the middle of an election year, last week’s decisions were an abrupt reminder of just how quickly, and unpredictably, the Supreme Court can upend the social landscape–and how big an impact the next president could have in influencing the court’s direction. The most controversial of the opinions, partial-birth abortion and Boy Scouts, resulted in familiar 5-4 splits between the court’s more liberal and more conservative members, except that in the abortion case, the five votes came down on the liberal side. That tenuous, one-vote balance of power could soon change. In the next four years it is likely that one or more of the current justices will retire, giving the next president at least one court pick. If that happens, a single strategic appointment–Gore replacing a conservative with a liberal or Bush swapping a liberal for a conservative–could decisively tip the court to the left or right. The last time the court was at such a tipping point was 1987, when Justice Louis Powell, a moderate, retired. Ronald Reagan nominated Robert Bork, a strong conservative who would have shifted the court dramatically to the right. But the Senate rejected Bork and eventually confirmed the more moderate Kennedy. This time, a new justice could be the fifth vote to entrench affirmative-action preferences or wipe them out; uphold tuition vouchers for religious schools or rule them unconstitutional; expand abortion rights or reinstate late-term restrictions.
Political professionals say that, despite its obvious importance, the composition of the court remains a little too abstract, a little too hypothetical, for most voters trying to pick a president. A NEWSWEEK Poll shows just 36 percent of voters consider Supreme Court nominees “very important” in choosing a candidate. Even so, with the public loudly complaining about how hard it is to tell Bush and Gore apart, the Supreme Court may yet emerge as the campaign’s sleeper issue, and one that most clearly defines what the candidates stand for in the minds of many moderate Americans. Bush has said that he would nominate only “strict constructionists” to the bench, justices in the mold of Antonin Scalia and Clarence Thomas, the court’s two most ardent conservatives. Gore, meanwhile, has said his judicial role model is the late Justice Thurgood Marshall, one of the most liberal, activist judges in the court’s history. The candidates’ ideas about what makes for a good justice are starkly different, and show just how dramatically a single robe change could alter the law of the land on the most difficult–and important–issues in America, perhaps for decades to come.
RACE A One-Vote Swing Could Break the Logjam In recent years the Supreme Court has taken on few controversial racial-preferences cases, though several have come over the threshold. Why? The current nine justices are sharply split on the issue. The court’s conservatives–Chief Justice William Rehnquist and Justices Kennedy, Scalia and Thomas–usually vote to strike down racial preferences both in government programs and in race-based election districts. On the other side, the court’s more liberal justices–John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer–believe preferences are still necessary to make up for a legacy of discrimination. That has left one justice in the middle: O’Connor, who is conflicted on the issue. She has cautiously curbed affirmative-action programs, and voted to strike down some racially gerrymandered election districts. But she has not been as firmly opposed to preferences as her more conservative colleagues. Unable to figure how O’Connor might come down on such cases, the other justices seem reluctant to take them on–perhaps because both the liberal and the conservative factions are worried that she’ll vote with the other side.
Without strong direction from the court, racial-preference laws are enforced unevenly. Public universities in most states continue to use racial preferences in admissions–but not in Texas, Oklahoma and Louisiana, where a federal appeals court ruled the practice was unconstitutional. When the University of Texas filed an appeal, the Supreme Court refused to take the case. A one-vote swing could break the logjam, either putting the court firmly behind affirmative-action preferences or putting such measures in danger of extinction.
RELIGION Putting Church and State in the Balance The court has been far more decisive about prayer in school. Two weeks ago it knocked down attempts by a Texas high school to have an elected student lead a prayer before football games. The decision extended a line of rulings since 1962 barring state-sponsored school prayer. But the justices had a harder time agreeing where to draw the line on another hot issue: government aid for parochial schools. In last week’s decision, which allowed public funds to pay for computers and books to be used in religious schools, the court was closely split. Four of the justices in the majority, Rehnquist, Scalia, Kennedy and Thomas–argued for opening the door wide to government support for religious schools and organizations, as long as similar secular groups receive the same benefits. In a forceful dissent, Stevens, Souter and Ginsburg criticized the conservatives’ opinion as radical and unconstitutional. O’Connor, joined by Breyer, agreed with the conservatives that government money could be used to buy things like computers and books for secular instruction; but in a separate opinion, they sided with the more liberal dissenters’ argument that directly supporting religious activities would be blatantly unconstitutional. In the future, O’Connor and Breyer signaled they would oppose any parochial-aid program that, in their eyes, jeopardized the wall between church and state. Add a strong Gore liberal or Bush conservative to the mix, and many church-state issues–including the constitutionality of tuition vouchers–could be up for grabs.
FEDERAL POWER Has Congress Become Too Powerful and Arrogant? The court’s five most conservative members have hung together most conspicuously in their efforts to limit congressional power over state matters. This year, for example, the court struck down a law allowing victims of rape and domestic violence to sue their attackers in federal court, ruling that crime and punishment in such local criminal cases should be settled by the states–without interference from the federal government. In a different kind of states’ rights case, the court also barred Congress from allowing state employees to bring federal age-discrimination suits against the states they work for. In 1997 it ruled Congress violated states’ rights when it required local sheriffs to help enforce the Brady gun-control law.
The court’s more conservative members believe Congress has become too powerful and arrogant, enacting laws that disregard the Constitution and are “downright bizarre,” as Scalia put it in an April speech. Since 1992 the court has struck down some 10 federal laws in an attempt to confine Congress to the specific powers spelled out in the Constitution. Yet the future of this conservative cause could well rest on the next president’s appointees. A conservative replacing a liberal would create a more solid core of six justices sympathetic to states’ rights. But a liberal replacing a conservative would bring Rehnquist’s string of 5-4 victories to an abrupt halt, shifting power back to the Capitol.
ABORTION Roe v. Wade in the Cross Hairs: An Elusive Target Despite Gore’s dire warning that one more conservative on the court would spell the end of Roe v. Wade, abortion rights are probably safe for at least the next four years, no matter who wins the White House in November. Last week’s ruling protecting partial-birth abortions was 5-4, giving Gore the opportunity to fan fears that abortion rights were hanging by a single vote. In reality, only three of the nine justices would overrule Roe. Kennedy, a Roe supporter, sided with the anti-abortion conservatives last week because, as he wrote in his dissent, many “decent and civilized people”– including some pro-choice moderates like Kennedy–find this particular late-term procedure “so abhorrent as to be among the most serious of crimes against human life.”
In cases involving earlier-term abortions, Kennedy has sided with the five other pro-choice justices, which means Roe defenders have a solid 6-3 majority. In order for Gore’s abortion scenario to come true, Bush would have to win the election, hope that two pro-choice justices retire, pick two ardent pro-life nominees and then get them through ferocious Senate confirmation battles. If all those things were to happen, then the court might overturn Roe–leaving it to the states to allow or prohibit abortion. But don’t lose too much sleep–or get too excited–just yet.
GAY RIGHTS A Very Fine Line on Discrimination The court has never granted gays and lesbians the same broad protection from discrimination that racial minorities and women have had for decades. Yet at least six of the current justices are sympathetic to gay rights. In 1996 the court expanded the rights of homosexuals when it struck down an amendment to the Colorado constitution that barred the state and local governments from punishing landlords and employers who discriminated against gays. Last week’s 5-4 decision allowing the Boy Scouts to ban gay leaders was portrayed as a step in the opposite direction. But the decisions were actually consistent. In last week’s case, the court ruled that the Scouts–a private group protected under the First Amendment’s freedom of association–could exclude gays as Scoutmasters since their very presence would send a message contradicting the group’s belief that homosexuality is immoral. In the eyes of the court, that’s far different from the government discrimination in the Colorado case. “It appears that homosexuality has gained greater social acceptance,” wrote Rehnquist in the court’s ruling. “But this is scarcely an argument for denying First Amendment protection to those who refuse to accept those views.” Another liberal on the bench, however, and the scales would have tipped the other way–expanding homosexual rights and making it more difficult for groups to use freedom of association as an excuse to discriminate against gays.
Encouraged by last week’s decisions, Gore is now preparing to make the Supreme Court a centerpiece of his campaign, despite jittery aides who think the topic might be a dud with the public. “It’s a hard issue,” says one adviser. The political pros “just don’t see it.” Gore wants to deliver a major speech on the court sometime in the next couple of weeks, using the opportunity to paint a nightmarish picture of what a Bush-packed court would mean for America. It’s a pitch aimed directly at the millions of undecided women and swing voters who fear a right-wing court. Liberal groups like People for the American Way and the National Abortion and Reproductive Rights Action League will bolster the message with ad campaigns pushing the court as an issue.
The Bush camp would rather change the subject. The candidate has remained vague on the issue of the court, saying little more than he doesn’t believe in “legislating from the bench.” After last week’s opinions, some conservative strategists began urging Bush to find a way to take the offensive–trying to make Gore look heartless for championing the unpopular late-term abortion procedure, or depicting him as a liberal who’d pack the court with Constitution-trashing justices. But for now, Bush is reluctant to be drawn into a war of words over nominees, a fight that could scare moderates he needs to win the White House. He understands the danger: talk too loudly now about the justices he wants, and he may never get the chance to appoint them.
