Republicans and Democrats often sound alike when it comes to economic and even some social issues. It's sometimes enough to make one wonder where their differences lie. But the parties do have radically opposed visions of the proper role of judges -- one of the most important issues of the 2000 presidential election. The next president is almost certain to determine the direction of the Supreme Court and the lower federal courts for decades.
The current Supreme Court could hardly be more closely divided over important social issues. Consider those the Court recently decided by only one vote: the constitutionality of racial preferences and districting intended to empower minorities; whether there are limits on Congress's power to legislate; the right of death row inmates to litigate endlessly; and the legality of direct or indirect aid to students who attend parochial school. The Court is also narrowly divided on abortion, and could soon be forced to decide whether a ban on partial-birth abortions is constitutional.
One new appointment alone could dramatically change the course of constitutional law. And most Court-watchers believe the next president will have three openings to fill. Chief Justice William Rehnquist, 74, his Stanford law school classmate Justice Sandra Day O'Connor, 68, and Justice John Paul Stevens, 78, are all expected to retire during the next president's term. A Democratic victory in the 2000 presidential election would have drastic consequences. If Rehnquist or O'Connor did leave, the moderately conservative majority they make up with Justices Antonin Scalia, 63, Anthony Kennedy, 62, and Clarence Thomas, 50, would become a dissenting minority. But it would take only one additional Democratic appointee to put the liberal wing of the Court -- which consists of Justices Stevens, David Souter, 59, Ruth Bader Ginsburg, 66, and Stephen Breyer, 60 -- in control. On the other hand, two new conservative justices, if they replaced Stevens and O'Connor, could presumably make five votes to overturn Roe v. Wade.
Many recognize that the next presidential election will determine the Court's positions on racial preferences and racial gerrymandering. In 1989, the Supreme Court held that state-imposed racial preferences were unconstitutional. Despite that decision, in 1990 the Court upheld racial preferences by the federal government by a one-vote margin. Five years later, the Court reversed that decision, 5-4 (Clarence Thomas's substitution for Thurgood Marshall made the difference).
A conservative Republican appointee would likely vote to keep in place the current regime banning preferences. Conversely, there is little doubt that, if the liberal justices were to gain control of the Court, they would revert to the 1990 rule allowing racial preferences by the federal government. They would probably uphold state-imposed affirmative action as well if it were justified by the need to address past discrimination. Although the Supreme Court is supposed to adhere to the principle of stare decisis -- respecting past decisions -- it does so less frequently in constitutional cases. What is more, stare decisis has been said to be less operative where an earlier decision was adopted "by the narrowest of margins, over spirited dissents challenging the basic underpinnings of those decisions."
The so-called civil rights community is well aware of the importance of the next president's appointments to the Court. As a result, it is playing for time, hoping for just one more Democratic appointment. This desire for delay explains why, in 1997, black civil rights groups ponied up roughly $ 300,000 to settle a controversial affirmative action case the Supreme Court had agreed to hear involving a white Piscataway, N.J., school teacher who had been laid off to preserve the job of a black teacher. As Piscataway school board lawyer David Rubin said, "Once the case was accepted by the Court," civil rights groups "raised a genuine concern that an adverse ruling in this case could gut the infrastructure of affirmative action across the country." Defending the decision to pay off the white teacher, former transportation secretary and longtime civil rights advocate William T. Coleman Jr. told the Washington Post: "I don't wish anyone misfortune, but people do retire."
Even the current, supposedly conservative, Supreme Court held unconstitutional, as a violation of the equal protection clause, Colorado's Proposition 2, which would have barred preferential treatment based on sexual orientation. Given this decision, it is certainly conceivable that the next Court appointment will also determine the legality of ballot initiatives such as California's Proposition 209, which barred all discrimination, including preferences based on race, color, creed, national origin, and sex. Indeed, one Carter appointee, California district court judge Thelton Henderson, initially struck down Prop. 209 on the ground that it violated the Constitution's guarantee of equal protection under the laws. Of this mandate for color blindness, Henderson said, "Proposition 209 was enacted 'because of,' not merely 'in spite of,' its adverse effects upon affirmative action, and thus . . . was effectively drawn for racial purposes." He was reversed by a panel of Reagan- and Bush-appointed court of appeals judges.
Racial gerrymandering has also been found unconstitutional, whether blacks or whites are the purported beneficiaries. The civil rights community justifiably condemned the use of race to draw bizarre congressional districts that denied blacks and other minorities the power to elect representatives of their choice. They have, however, endorsed the use of race to draw so-called majority-minority districts, no matter how strange their shape. In 1994, again by a one-vote margin, and with Stevens, Souter, Ginsburg, and Breyer dissenting, the Court held that race could not be the predominant factor in drawing district lines, even to guarantee the election of minorities. These justices have continued to dissent in every subsequent case applying that decision. An additional Democratic vote would almost certainly cause a reversal, which would revive a practice that, according to the hardly radical Justice O'Connor, "bears an uncomfortable resemblance to political apartheid."
The bloc that includes Rehnquist, O'Connor, Scalia, Kennedy, and Thomas has also decided to limit some of the federal government's power. For example, in United States v. Lopez, these five ruled that the Gun-Free School Zones Act exceeded Congress's authority under the commerce clause. Possessing a gun in a school zone, they reasoned, is not an activity that substantially affects interstate commerce. This decision marked the first time in sixty years that a federal law regulating private conduct was invalidated as beyond Congress's commerce-clause power. Similarly, in Printz v. United States, this same majority held that the Brady Act's requirement that state officials run background checks on prospective gun buyers was unconstitutional because it conscripted state officers into enforcing federal law.
Although the Court has not again applied the Lopez decision, its principal finding that there are limits to the scope of federal authority has important legal as well as political consequences (as Michael Greve shows in his important new book Real Federalism: Why It Matters, How it Could Happen). The mere existence of cases like Lopez and Printz forces Congress to consider whether a particular measure, however politically attractive, is within its competence and power. These cases also give needed constitutional ammunition to pro-federalism legislators. And just a few weeks ago, a federal court of appeals relied on Lopez in holding that certain provisions of the Violence Against Women Act were beyond Congress's power. The fate of this reassertion of federalist principle turns on the next presidential election.
The Rehnquist bloc has limited earlier Supreme Court attempts to excise religion from the public square. In 1985 the Supreme Court held that the First Amendment's prohibition against the establishment of religion barred New York City from sending public school personnel into parochial schools to provide remedial education to disadvantaged students (which they would have received had they attended public schools). There had been no example of a government employee providing religious instruction during the program's nineteen years. Nevertheless, the Court ruled the program unconstitutional under a Catch-22 precedent: Merely policing the program to ensure that church and state did not get entangled was itself so entangling as to make the program unconstitutional. As a result, for more than a decade, children whose parents chose to send them to parochial school were denied remedial-reading assistance, counseling, and other services.
In this case, Aguilar v. Felton, the Supreme Court went further than ever before in its establishment-clause jurisprudence. Aguilar made it impossible for the government not to discriminate against those choosing to send their children to religious schools. Two years ago, by a one-vote margin, the Court reversed Aguilar. Calling the initial determination "correct and sensible," Justice Souter wrote in dissent, for the same liberal four, that the Court had breached its previous "flat ban on subsidization."
Relying on the Supreme Court's more recent decisions, the Wisconsin Supreme Court held that Milwaukee's school choice plan was not unconstitutional even though money ended up in parochial schools -- because parents, not government, decided where the money went. There is, however, an outdated Warren Court authority that would, if applied, seem to invalidate any school choice plan that offered parochial schools as an option. Most Court-watchers believe that, at present, there are no more than five votes for upholding school choice plans that include parochial schools. The next election will likely determine whether religious schools may be included in school choice plans, the constitutionality of which is currently being litigated in six states.
School choice is not the only new issue the Court will soon have to decide. As of September 1998, 25 states had adopted bans on partial-birth abortions. In 17 of those states, judges had permanently or temporarily enjoined the enforcement of the law. The Sixth U.S. Circuit Court of Appeals struck down Ohio's partial-birth abortion ban as "over-broad" because, it said, the law could be construed as prohibiting more commonly used, ostensibly protected abortion procedures. The current Supreme Court would almost certainly uphold such laws, particularly if they were limited to partial-birth abortions during the third trimester, when the Court has said abortions may be banned. A new appointment to the bench could, however, lead to the invalidation of partial-birth abortion bans. And new appointments could, of course, lead to the reversal of Roe v. Wade, moving the abortion debate back to the state legislatures or, perhaps, Congress.
Although not much has been done to reverse the dramatic Warren Court-era expansion of criminal rights, the Rehnquist bloc has prevailed in a number of important cases that illustrate what is at stake in the next election. In recent years, the Court has, by one vote, turned back arguments that criminals could prevent parole boards from considering evidence seized in violation of the Fourth Amendment. The same narrow majority has rejected the argument that a prison must give an inmate adequate notice and a hearing before punishing him with disciplinary segregation. The same group of five also refused to allow death row inmates to raise in federal court entirely new claims that they hadn't brought up either on direct appeal or in state habeas corpus proceedings.
The situation at the Supreme Court is mirrored at the federal court of appeals level, where most important legal decisions are made. In particular, it is primarily the courts of appeal that constrain overregulation by federal agencies. After eight years of Clinton appointments, two-thirds of the circuit courts are either controlled by Democratic appointees, or have reached a "tipping point." Of twelve circuits, three are now controlled by Democratic appointees, and one stands at equipoise. Reagan and Bush appointees still control eight, but four of them by only one vote. The next wave of appointments will be crucial.
As important as whether the next president is a Republican or Democrat is whether the president, if a Republican, is willing to commit political capital to the appointment of judges committed to a philosophy of textualism and originalism. When President Bush appointed David Souter, administration aides touted him as a "stealth candidate." Once appointed, Souter became a reliable vote for liberal positions. Republican appointees to the Supreme Court are far more likely to turn left once on the bench than Democratic appointees are likely to even pay lip service to the right. Indeed, neither Breyer nor Ginsburg, although often mislabeled "centrists," has yet disappointed the Clinton administration in a single close, high-profile, politically sensitive case.
The reason judges, particularly Supreme Court justices, tend only to grow to the left has been explained most eloquently by Judge Robert Bork (for whom I clerked). Elite culture, and particularly legal culture, pushes judges to be liberal activists. Only those judges who are truly committed to a philosophy of textualism and originalism, and who are willing to endure the opprobrium of the Washington media, have been able to consistently withstand this cultural force.
Given the effect of the Supreme Court and the federal judiciary on the lives of Americans, it is arguable that the appointment of federal judges is a president's most important domestic function. If you care about racial preferences, partial-birth abortions and the abortion right more generally, expanded criminal rights, and school choice, then you should care about the next president's appointments to the federal courts, for they will determine whose views on these issues will prevail.
Daniel E. Troy practices constitutional law at Wiley, Rein & Fielding and is an associate scholar at the American Enterprise Institute.