Legal Times - 'Wrong Way' McCain

Op-Ed

Legal Times - 'Wrong Way' McCain
His Supreme Court picks would usher in a cold day for legal progress

The Supreme Court has just adjourned for the summer. When the Court reconvenes in October, we will be in the final weeks of the campaign to pick the next president.

That president will likely have the opportunity to appoint several justices to the Supreme Court, where today "originalists"—those who limit their interpretation of the Constitution to what they imagine the Framers intended—are on the verge of gaining a solid majority. Just one more appointment in the mold of Chief Justice John Roberts Jr. or Justices Samuel Alito Jr., Antonin Scalia, or Clarence Thomas would cement the conservatives' hold on the high court for a generation.

The next president will also appoint a significant number of judges to the federal courts of appeals. In an era when the Supreme Court reviews only about one-half of 1 percent of federal appellate decisions, federal circuit judges effectively have the last word on most issues. Moreover, because federal judgeships are lifetime appointments, these judges have an impact that long outlasts the power of the president who appoints them.

Sen. John McCain has made clear what the federal judiciary would look like under a President McCain. In a speech at Wake Forest University last month, he outlined his judicial philosophy. He promised to appoint judges like Roberts and Alito, who in their short tenure on the high court have already erased decades of hard-won progress for minority and gender equality.

Roberts and Alito were the deciding votes in such 2007 cases as Ledbetter v. Goodyear Tire & Rubber Co., which prevented a female employee from recovering pay in a gender discrimination case even though she demonstrated that she had been paid significantly less than similarly situated male colleagues, and Parents Involved in Community Schools v. Seattle School District No. 1, which held that the school district's desegregation plan was unconstitutional and thus dealt a major blow to the promise of equality and opportunity in the 54-year-old landmark Brown v. Board of Education. And they have demonstrated a predilection for the interests of big business over those of individuals in cases such as this year's Riegel v. Medtronic Inc., which deprived individuals injured by defective medical devices of their right to sue the manufacturers under state tort law.

STRAINED THEORY

In his Wake Forest speech, Sen. McCain also pledged not to appoint "activist" judges who usurp power and legislate from the bench, but rather judges who would adhere strictly to the text of the Constitution. This is an unobjectionable statement on its face. But the decisions McCain used (and did not use) to illustrate his point showed that he supports the strain of originalism that, under the guise of discerning the Framers' original intent, would dismantle the power of the federal government and liquidate constitutional protections for personal privacy and social justice.

As an example of "judicial activism," Sen. McCain cited Roper v. Simmons, a 2005 case in which Justice Anthony Ken¬nedy wrote a 5-4 decision holding that the Eighth and 14th Amendments prohibit the execution of offenders who were under 18 when they committed their crimes. The Court considered, among other things, what Kennedy called our nation's "evolving standards of decency"—namely, the ban that a majority of states already imposed on the execution of minors and the growing reluctance to execute minors in those states that still allowed it. McCain ridiculed Kennedy for invoking "evolving standards of decency," calling it a "poor substitute for clear and rigorous constitutional reasoning."

Sen. McCain preferred the "constitutional reasoning" of Justice Scalia, who suggested in dissent that the Eighth Amendment would not prohibit a state from executing 7-year-olds because that was the minimum permissible age for execution in the 18th century, when this country was founded. It did not matter to Scalia that our standards of decency and our understanding of brain development have evolved significantly over the course of 220 years. All that mattered to him was that at the time the Framers drafted the Constitution, at least one state's laws permitted the execution of 7-year-old children.

Although he denounced judicial activism, Sen. McCain made no mention of one of the modern Court's most egregious cases of judicial overreaching, Bush v. Gore (2000). And although he promised to appoint judges who "understand that there are … clear limits to the scope of federal power," he ignored cases where the Court struck down federal statutes even though the government clearly had authority to act—including United States v. Lopez (1995), where the Court struck down the Gun-Free School Zones Act, and United States v. Morrison (2000), where the Court struck down the civil rights remedy in the Violence Against Women Act.

Sen. McCain clearly aligned himself with proponents of the theory that power should be devolved from the federal government to the states. But the Framers never intended to hamstring the federal government in favor of the states. They abandoned the Articles of Confederation and fashioned a government that was both federal—comprising sovereign states—and national in power. Even in 1789, the Framers recognized that only the federal government can address truly national issues like interstate commerce. And as rivers and wagon trails have given way to highways, railways, and air travel, those issues within the province of federal power have expanded.

‘OUR WHOLE EXPERIENCE'

A return to the cramped originalism advocated by Sen. McCain would be a tremendous step backward. The Founders did not intend to consign us forever to the thinking of the past, but instead recognized that, as Thomas Jefferson said, "Our laws and our institutions must go hand in hand with the progress of the human mind." Their genius is reflected in a Constitution that does not bind the country forever to the specific laws of 1789, but rather sets forth general principles for maintaining our system of government and our most fundamental values even as the nation evolves.

Writing for the Court in Missouri v. Holland (1920), Justice Oliver Wendell Holmes Jr. captured this sentiment well: "The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago."

Eight years later, Holmes joined Jus¬tice Louis Brandeis' dissent in Olmstead v. United States, which held that individuals had no Fourth Amendment privacy interest in the content of their phone conversations. Brandeis wrote that while the Constitution had been drafted to address particular "evils," "its general language should not . . . be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth."

History has taken the side of Justices Bran¬deis and Holmes: The Court reversed Olmstead 40 years later in Katz v. United States (1967), holding that private phone conversations are protected by the Fourth Amendment.

Sen. McCain's strain of originalism ignores the principal genius of the Con¬sti¬tu¬tion recognized by Holmes and Bran¬deis—its ability to encompass within its principles new eventualities and to accommodate the growth and evolution of our nation. If McCain's philosophy were to become ascendant on the Court, the consequences for our rights and liberties would be significant. In addition to revisiting decisions we now take for granted—such as those prohibiting racial discrimination and securing reproductive rights—a Court dominated by originalists would struggle to determine how the Constitution applies to a host of issues the Founders could never have imagined. What were the Founders' views, for instance, on whether employers should be allowed to access their employees' genetic information or whether the government can use neuroimagery to determine whether a person is inclined toward criminality or violent behavior? The justices whom McCain admires seem always to fill the gaps left by their judicial philosophy by finding no individual right to privacy or protection in the face of new technologies.

No matter who is elected this fall, the world will continue to evolve and advancements in science and technology will change the way we live and the way we view ourselves. The president who appoints the next several justices will set the direction of the Supreme Court and the country: Will the next generation be able to harness and control the power of science and technology? Will we achieve the full measure of our potential by expanding individual liberties in tandem "with the progress of the human mind"? Will we have a federal government that is strong enough to provide for the safety and welfare of its citizens? That's what is at stake this November.

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