WASHINGTON (ABP) — The future of the Supreme Court on issues important to religious voters is almost certainly at stake in the Nov. 2 presidential and Senate elections. But an expert on the court says the disaster scenarios that both conservative and liberal groups are touting to stoke support among their core constituents may not be as realistic as they would have you believe.
The Oct. 25 announcement that 80-year-old Chief Justice William Rehnquist had undergone surgical treatment for thyroid cancer focused the nation's attention on the court as an electoral issue. Experts predict that Rehnquist and as many as three other justices may leave the bench during the next president's term.
Rehnquist has tended to be one of the court's most reliably conservative voters, and has often sided with religious conservatives on the issues — such as abortion rights, gay rights and government support for religious institutions — most important to them.
Meanwhile, one of the court's most liberal justices, 84-year-old Justice John Paul Stevens, tends to vote opposite Rehnquist on those issues and is also considered a strong possibility to leave the court in the next four years.
And many experts also expect the court's most centrist judge — 78-year-old Sandra Day O'Connor — to retire under the next president.
According to Elliot Mincberg, legal director for the liberal advocacy group People for the American Way, that leaves many important decisions on church-state, religious freedom and moral issues in the balance. “The court is extremely closely divided,” he said. “Most of these decisions are 5-4, and many of them are 6-3. So a shift of a few votes could completely revolutionize the law and peoples' rights in this area.
Folks on the other end of the political spectrum tend to agree. “The stakes? They're devastating.… [The Supreme Court is] absolutely the bottom line for the election,” said Connie Mackey, vice president for governmental affairs at the conservative Family Research Council.
President Bush has said he would appoint only “strict constructionists” — a term denoting a school of jurisprudence that says judges should find rights only explicitly granted by the Constitution — to the court. Such jurists are generally conservative on issues such as gay rights, abortion rights and government's role in endorsing or supporting religion.
Meanwhile, Massachusetts Sen. John Kerry, the Democratic presidential nominee, has said he would not nominate justices who would revoke rights — such as the right to abortion — that previous courts have interpreted in the Constitution.
Bush has also held up the court's two most conservative associate justices, Antonin Scalia and Clarence Thomas, as models for the kinds of judges he would appoint.
Mackey said Bush's promise to appoint such strict interpreters of constitutional rights would mean he wouldn't appoint “activist judges” — and that such appointments also would make it more likely that court decisions would go the way her organization would like. “We've got to have judges on the court who understand the Constitution and who give their opinions in the confines of the Constitution,” she said.
But an expert on constitutional law and the court said Bush's promise not to appoint activist judges might ring a little hollow. “Bush says, 'I want judges who believe in judicial restraint, who simply want to follow the Constitution and who aren't going to make up law,' but then he holds up Scalia and Thomas as examples,” said George Washington University law professor Chip Lupu. “It's not like Scalia and Thomas are the un-activist judges. They're activists on the issues they care about.”
Lupu, who also serves as a scholar with the Roundtable on Religion and Social Welfare Policy concluded of Bush: “He wants judges who are restrained on certain issues — social issues — that he and his supporters care about, like abortion and gay rights in particular.”
However, on those issues, Lupu said, the worst fears of both Bush supporters and Kerry supporters might come to pass because of the kind of restraint judges at the highest level tend to show.
In the case of abortion rights, Kerry has promised not to appoint judges who would overturn the controversial 1973 Roe vs. Wade decision that legalized abortion nationwide. Meanwhile, Bush has at least implied — although not directly stated — that he would appoint judges who opposed that decision.
But Lupu said he had difficulty imagining that Bush would want to be remembered as the president who caused abortion rights to be undone. “
It's not at all clear to me that he's eager to appoint the justices who would overturn Roe vs. Wade, and have that on the [Republican] Party in 2008 or whenever that would hit,” Lupu said. “It's much clearer that the Kerry folks would save it [the right to abortion] than that the Bush folks would undo it.”
On gay rights, Mackey's organization and others have said that Kerry would appoint judges who could interpret the Constitution to impose same-sex marriage on the states. Meanwhile, Mincberg noted that a shift of two votes could reverse the 2003 Lawrence vs. Texas decision that declared state bans on gay sex unconstitutional.
But Lupu said both were far-fetched. “The Bush appointees — there's no reason to expect that they're going to be aggressive or assertive on gay rights, particularly on same-sex marriage…. But frankly, I think it's unlikely that Kerry appointees would either,” he said.
That's because judges are sensitive to the political ramifications that their decisions may have in the popular culture — and there could be a significant “backlash” to a judicial imposition of gay marriage on the populace, he added.
“I don't see the Supreme Court in the near future imposing that on the country, and I don't think that Kerry appointees are any more likely to do that than Bush appointees, even though they might want it deep-down in their hearts,” Lupu said.
On the issues of religious freedom and church-state separation, the differences between potential Bush appointees would probably be more pronounced — although potential Bush appointees wouldn't necessarily be more “pro-religion” on all issues than Kerry appointees, as some might assume.
For example, Scalia and Thomas have asserted that government can provide certain social services via direct funding of churches and other religious organizations, a position strongly opposed by most church-state separationists.
Appointing two more justices like Scalia and Thomas could be disastrous, according to Mincberg: “The court is only a few votes away from following the radical view of Scalia and Thomas that the government can directly subsidize religious programs … which would literally be something that would make James Madison turn over in his grave.”
But Kerry appointees would probably be less receptive to such accommodations of religion, Lupu said, which would maintain or strengthen the court's current majority in opposition to direct government funding of religious enterprises.
Bush appointees also might be more open to state acknowledgement of religious texts or ideas, such as Ten Commandments displays on public property or government invocations, Lupu said. If Bush actually used Scalia and Thomas as his model for appointees, he noted, “it's clear that state power to do that kind of acknowledgement of religious sentiments or occasions would be wider than it now is.”
However, Lupu said he found it unlikely that even a court with Bush appointees could issue radical reversals of earlier decisions banning government-sanctioned prayer in public schools. “Morning prayer every day in the classroom? I don't think so. I think we've pretty deeply internalized the idea that that tends to be coercive [to children of minority faiths],” he said. “I think that that would be extremely unlikely that it would get that far.”
On cases involving the other half of the First Amendment's religion clauses — the one protecting the free exercise of religion — the difference between potential Bush appointees and Kerry appointees would get a little bit harder to predict.
In recent years, the most conservative justices have sided with the government in cases where lower courts found a government agency's action had too heavily burdened an individual or group's exercise of religious practice. Meanwhile, Ginsburg and some of the more liberal justices have tended to hold a higher regard for keeping free-exercise rights inviolate, even when they inconvenience government agencies.
While it's difficult to predict how judges will rule without knowing the specifics of the case before them, Lupu said, “Kerry appointees on average would be more likely to favor free-exercise exemptions than Bush appointees would.”
However, on legislatively enacted free-exercise exemptions — such as the Religious Land Use and Institutionalized Persons Act, which is at issue in a case that the court has agreed to hear — Lupu said Scalia and Thomas would be supportive of such accommodations of religious groups and individuals.
Lupu's cautions, though, didn't seem to dull the convictions of either Mincberg or Mackey that the election is vital because of the court's future.
If Bush is elected and follows up on his promise of justices in the Scalia/Thomas mold, said PAW's Mincberg, “I think it's quite easy to imagine a country in which the right to reproductive choice is limited for millions of women, where the government is willing to subsidize directly religious organizations.”
Mackey, while acknowledging that Bush appointees probably wouldn't be certain to deliver every decision that Family Research Council would want on such issues as abortion, said she still would prefer that he have the opportunity to make appointments to the high court. “If you believe the rhetoric — the Kerry rhetoric versus the Bush rhetoric — I tend to side with the Bush rhetoric,” she said.
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