Below is today’s column on the end of the Supreme Court term. It looks at the implications of the current Court for either a President Obama or a President McCain. An interesting analogy can be drawn to the Four Horsemen and Three Musketeers of the Hughes Court during the first term of Franklin Delano Roosevelt.
July 2, 2008 Wednesday
HEADLINE: The next president’s court;
Today’s Supreme Court has a historic parallel — FDR’s court. So what might that mean for McCain or Obama?
With the end of the U.S. Supreme Court session last week, legal experts are mulling over the recognition of the individual right to bear arms, the expanded rights of detainees and other important rulings. But the most interesting aspects of this session might be less the message than the messengers. The Roberts court is becoming an intriguing case of history repeating itself. It took seven decades, but the Four Horsemen have returned.
The original Four Horsemen were conservative justices during Franklin D. Roosevelt’s presidency. They effectively blocked many of his economic reforms and programs. The return of the horsemen could well shape the legacy of a President Obama or a President McCain, with decisions rendered before either takes the oath of office.
The similarities between the courts of Chief Justice Charles Evans Hughes and Chief Justice John Roberts are striking. Both the Hughes and Roberts courts ruled during periods of economic difficulties and political shifts in power. Both courts had four conservatives who maintained a united voting bloc on most major issues. On the Roberts court, the Four Horsemen are the chief justice and Justices Antonin Scalia, Clarence Thomas and Samuel Alito.
What FDR faced
If elected president, Barack Obama could find himself in a position strikingly similar to FDR’s first term, when Roosevelt inherited a conservative bench from his Republican predecessors. With a country in economic crisis and a world in upheaval, Obama would face a court with a near majority of ideologically hostile justices. Worse yet, unlike the original Four Horsemen, whom FDR accurately dismissed as the “old men” (all were over 70 in 1937, their last year on the court together), the new horsemen are mere judicial adolescents in comparison — Roberts is 53, Alito is 58 and Thomas just turned 60 last week. Only Scalia has serious miles on the odometer at 72.
Ironically, if John McCain wins, he will face a close proximity of the other bloc of the Hughes court, three justices called the Three Musketeers. For McCain, the Three Musketeers are Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer, with David Souter playing the role of d’Artagnan — the fourth Musketeer. The difference (and advantage) for McCain is age. The average age of the left wing justices is about 75, and the iconic leader of the left wing, Stevens, is 88 years old. The next president will likely be replacing liberal justices — a great opportunity for McCain to fundamentally change a wide array of legal doctrines, and a great anxiety for Obama to try to (at least) maintain existing doctrines such as Roe v. Wade.
Make no mistake: This court is deeply divided. While the number of 5-4 opinions fell slightly from the previous term, the appearance is deceiving. There were also 10 fewer unanimous or near-unanimous decisions. Moreover, in some major rulings that escaped the 5-4 category, it was often because liberals moved over to join the conservatives rather than a shift from right to left. This was the case on the 7-2 vote to uphold lethal injection (with Stevens and Breyer) and the 6-3 vote (with Stevens) to uphold photo identification requirements for voters.
President Bush’s appointees — Roberts and Alito — proved as good as advertised for conservatives. Though Roberts insisted at his confirmation that he was a centrist, his center has proved somewhere between Thomas and Scalia. He was there this term to cast the fifth vote to recognize the individual right of gun ownership, to strike down a law effectively penalizing millionaires financing their own campaign, to extend immunity of law enforcement officers from lawsuits and (in a 5-3 vote) to drastically cut the punitive damages in the Exxon Valdez disaster.
Yet not all decisions this term were predictable for the court’s right wing, such as those that protect employees from retaliation and one supporting a Louisiana death-row inmate’s claim of racial discrimination in jury selection.
Where the divide was deep
Even so, the ideological divide was deep and raw in cases such as the detainees decision, where four justices were willing to allow the president to deny the protections of habeas corpus to those held at Guantanamo Bay, Cuba. While Roberts tended to use more moderate language, Scalia predicted that his liberal colleagues had signed the death warrants for their fellow citizens because the decision “will almost certainly cause more Americans to be killed.” It was something one would expect to hear on a late night four-in-a-box dogfight cable show — not a historic court decision.
This term also showed that on the most important issues, both McCain and Obama would begin their presidency with a court of one: Justice Anthony Kennedy (the same role played by Justice Owen Roberts on the Hughes court).
Indeed, this often looked more like the Kennedy court than the Roberts court, with major decisions on habeas corpus (Boumediene v. Bush), limits on the death penalty (Kennedy v. Louisiana) and immigrant rights (Dada v. Mukasey). All were 5-4 decisions where Kennedy held back the Four Horsemen by joining the Four Musketeers. After years in the shadow of Sandra Day O’Connor, Kennedy seems to have found his voice — one that either Obama or McCain will likely have to heed in the years to come.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.
July 2, 2008