Tuesday, September 23, 2008

The Election & The Court

Last Sunday’s edition of the New York Times included an editorial, “The Candidates and the Court”, which reminded readers that the next President will almost certainly select at least one Supreme Court justice and warned that Sen. McCain “is likely to complete President Bush’s campaign to make the court an aggressive right-wing force.” In many ways, the piece echoed Prof. Cass Sunstein’s recent Boston Globe op-ed which complained about the “extremism” of Republican judicial appointees and the ominous threat they pose to “choice”.

Well, one should always take New York Times editorials about the Supreme Court with a grain of salt. In the bizarro-world from which they proceed, “extreme” is simply code for “at odds with the preferred, left-leaning policy outcomes of those who write editorials for the New York Times” while those whose decisions facilitate those outcomes are, of course, “moderate.”
But even if the Times is an unreliable source when it comes to understanding the Court, and the Constitution, the editorial does get one thing right: The President does nominate federal judges, and it seems pretty clear that Sen. Obama and Sen. McCain have different ideas about such judges’ role and responsibilities. So, what should Catholics think? Many Americans say that “the courts” are a major factor when they evaluate candidates. Should they be? Does the Court really matter?

Short answer(s): Yes, it does, but not as much as people think, and more than it should.
The Court matters “not as much as people think”, because most cases are not ideologically charged, 5-4 splits, but instead involve the lawyerly resolution of technical disputes about the interpretation of federal statutes. And, of course, “We the People” – speaking through Congress – can always correct or undo such interpretations, if we disagree with them. So, a Catholic who prefers, for example, increased regulation of “business” need not worry too much if a “consumer” loses in a particular case; she remains free to lobby for a change in the law.

Things are different, though, when it comes to the divisive and difficult questions of morality and social policy that the Court has – in many cases, mistakenly – constitutionalized, which is why the Court matters “more than it should.” When the Court decides that We the People no longer have the right to decide certain questions – for example, should unborn children be protected in law and welcome in life – the democratic conversation is cut off, dialogue is shut down, and the chance for compromise withdrawn. Because the Court has assumed for itself the task of answering so many questions that people, quite reasonably, care so much about, the Court matters “more than it should”, and so it matters who picks our federal judges. Catholics should know, then, that federal judges selected by a President McCain would be (much) more likely to, for example, permit reasonable regulations of abortion, religious expression in the public square, and legislative experiments with school choice than would judges appointed by his rival. This is a fact. And it matters.

Rick Garnett

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