The Election and the U.S. Supreme Court
Tuesday, October 14th, 2008 By David Owsiany
Yesterday, the Columbus Dispatch ran interesting pro and con columns on the likely impact the presidential election will have on the United States Supreme Court. Bradley Smith, a Capital University law professor and former chairman of the Federal Election Commission, as well as a long-time Buckeye Institute advisor and board member, wrote an excellent op-ed explaining the dangers of Obama’s philosophy on judges. He described Obama’s approach as giving judges a license to “substitute their political preferences” in place of applying the law in a neutral fashion. Under this approach, the Constitution means whatever a majority of the Supreme Court says it means.
In contrast, Smith pointed out that McCain favors justices like Chief Justice John Roberts, who has led the court toward:
a moderate course marked by an appropriate reluctance to wade into questions best left to elected representatives, careful adherence to the written Constitution and opinions that focus on the immediate case rather than relying on the judges’ hearts to make grand social change from the bench.”
The opposing point of view was presented in a column written by Dan Kobil, who is also a law professor at Capital University. Kobil claimed that Obama would favor justices like John Paul Stevens who is the court’s “staunchest advocate for individual liberties.” However, what Kobil really means is that Obama favors justices who will pick and choose which individual liberties deserve protection based, not on the text of the Constitution, but on the justices’ personal philosophies and political preferences. For example, Kobil’s model justice - Stevens - wrote a dissenting opinion in Heller vs. the District of Columbia, in which he argued in favor of upholding Washington D.C.’s ban on possessing handguns. Stevens’ dissenting opinion, however, does not adequately address the language of the Second Amendment which provides “the right of the people to keep and bear Arms, shall not be infringed.” So much for the court’s “staunchest advocate for individual rights.” While gun rights - which are clearly protected by the text of the Second Amendment - are not protected from infringement under Stevens’ interpretation of the Constitution, Kobil praises Stevens for his support for abortion rights, even though abortion is not mentioned anywhere in the Constitution.
Bradley Smith appropriately described this “living Constitution” approach espoused by Kobil, Stevens and Obama as “a recipe for inconsistency, politics, and favoritism that undermine justice.”
Tags: Barack Obama, John McCain, Presidential Election, U.S. Supreme Court
