The View From Here . . .
By Bob Morgan, Jr.

While this November's ballot will only include federal candidates for President and Congress (plus numerous state and local races), the decisions announced this week by the United States Supreme Court illustrate another very important dimension of the fall's election. The results will likely decide the direction of the Court for years to come as it decides issues of profound national consequence.

The possibility of sweeping changes on the Supreme Court in the next few years is high as it is very likely the new president will have numerous vacancies to fill. Justice John Paul Stevens, a reliable liberal justice (albeit appointed by President Gerald Ford), is now 88 years old, and no doubt would like to have a Democratic president appoint his successor. In addition, four other justices (Anton Scalia, William Kennedy, Ruth Bader Ginsburg and Stephen Breyer) will be 70 by the end of 2008 and a number have had significant health issues. Of course, confirmation of a new justice requires approval of the United States Senate, which almost certainly will be in Democratic hands through at least 2010, but nominees of a President McCain likely will be very different from those of a President Obama.

Perhaps the best recent example of the stakes involved is the Supreme Court's decision last week on a 5-4 vote in the Heller case, which for the first time recognized a right under the Second Amendment of individuals to possess a firearm unconnected with service in a militia and to use it for traditionally lawful purposes such as defense within the home. The decision made it clear that the right is subject to limitations, but left to future cases the scope of these limits in any detail. While Barack Obama expressed some support for the result in Heller, it seems far more likely that any justice that he appoints will side with the four liberal dissenters in the case (Justices Stevens, Ginsburg, Breyer and Souter) than with the majority. This would likely result in a very narrow reading of Heller, or even the overruling of the decision. On the other hand, justices appointed by John McCain would likely read the Second Amendment more expansively.

Another example that came up this week is the Court's decision in Louisiana v. Kennedy, which, again on a 5-4 vote, determined that the Eighth Amendment's prohibition against cruel and unusual punishment prohibited the imposition of the death penalty for rape of a child. The majority opinion was written by the Court's swing justice, Anthony Kennedy, joined by the four liberal justices. The Court held that capital punishment was impermissible in cases of crimes that do not result in death. Again, future liberal justices might build on Kennedy by further limiting the applicability of the death penalty, while more conservative ones might overrule the case or apply it very narrowly.

Of course, there are numerous other important matters that would be affected by the composition of the Court. One example, of course, is abortion, although repeal of Roe v. Wade would only put the issue back to the states, not outlaw the procedure. An issue with greater practical consequences might be affirmative action, where the last major case, Grutter v. Bollinger, was decided on a 5-4 vote by now-departed Justice Sandra Day O'Connor. That case held that affirmative action preferences were still needed to remedy discrimination, at least for a limited time.

Like it or not, the decisions of the Supreme Court have enormous practical importance, and voters very much should take them into account before pulling the lever in November.