Transcript
BEN WITTES: Every four years we have this discussion that comes up in the context of the presidential campaign which is characterized by sort of apocalyptic rhetoric about the future of the courts from all ends of the political spectrum. You'll frequently hear dire predictions about the fate of values that "we all," meaning our particular political whichever it is, holds dear. Anxieties about overweaning judicial power, anxieties about overweaning power by branches of government the executive is meant to check. And there is always the sense that we are kind of at the edge of the cliff and staring down into the abyss, and not just at the edge of the cliff, but in a truck kind of racing toward the edge of that cliff and about to plunge into the abyss. I think I once did a sort of informal study of the last several elections, I guess since 1980, the political rhetoric in the elections, and it really is something that happens every four years and the rhetoric is almost interchangeable every four years. And every four years it turns out to be in some sense correct which is to say that a president gets elected, makes appointments, those appointees are different if that president is a Republican than if he's a Democrat, and both collectively at the lower court level and individually at the Supreme Court level, those nominees do incrementally and sometimes quite dramatically affect the direction of the law.
In some larger sense, however, I think every four years that rhetoric, and particularly that sense of being right at the edge of a cliff in a truck careening over the edge of it, turns out to be wrong, which is to say that we never actually plunge into this abyss in which we lose all our values. And the federal judiciary has a great deal more continuity than sudden change, and so we see that continuity across administrations in a way that that rhetoric would never lead you to predict. Which brings us to this year. Once again we see this sort of sense that the fate of the courts are at stake, and there is some reason this year actually to wonder if that may be truer than it's been in prior years in prior quadrennial cycles of anxiety.
At the Supreme Court level, we always talk about the Supreme Court at a tripping point and in a very visible sense this year I think that's probably actually true. You have two blocs of four justices on a delicate seesaw over the fulcrum of Anthony Kennedy who is the decider in an incredible number of cases. Because of the age of some of the justices particularly on the liberal flank, the next president, presumably if he's John McCain, has a genuine opportunity to create a decisive majority on the conservative side. And similarly, a Barack Obama administration would have the opportunity at a minimum I think so substantially reinforce the liberal flank with much younger justices and you could imagine in the course of particularly an 8-year Obama administration an opportunity to pick off or replace one of the five members of the conservative majority. So you could really imagine a very different Supreme Court after 4 or 8 years of an Obama administration than after a McCain administration.
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