Thoughts on the Supreme Court

Yesterday, the Supremes (sadly, not the ones led by Diana Ross) ruled in a 5-4 decision that the death penalty is unconstitutional in child-rape cases. Of course, reasonable people can disagree about whether there should EVER be a death penalty (although our founders obviously believed such a penalty was legal, as they specifically mentioned it in regard to treason). But it seems self-evident to me, unenlightened Philistine that I am, that IF such a penalty does legally exist for the most heinous crimes, that the aggravated rape of a small child should make the cut. I'll bet that 95%+ of Americans would agree with me on that. A sign of this near-unanimity is the fact that both Senators McCain and Obama criticized the decision. I wouldn't characterize this as a "conservative" or "nonpartisan" move by Senator Obama--I think any father of young daughters with warm blood would have done the same.

However, if Senator Obama is elected, he'll almost certainly appoint judges in the mold of Justices Stevens, Ginsburg, Breyer, and Souter--the four most "liberal" (or least "originalist") justices, all of whom voted with the majority. If McCain is elected, he has promised to appoint judges more like Chief Roberts, Thomas, Alito, and Scalia (the four who actually thought the rapist should meet the needle). The swing vote was Anthony Kennedy, ably stepping into the void left by the retirement of the previous swing vote, Sandra Day O'Connor. He is what passes for a "moderate" judge these days... meaning that he has no discernible judicial philosophy. It should be a maxim that if the court reaches a 5-4 decision with Kennedy as its linchpin (and particularly if he writes the majority opinion, as in this case), there's a good chance the opinion is screwy.

I've always thought that the six biggest reasons to vote against a President Obama were the six justices currently over the age of 67. Let's not forget our Civics 101: federal judges serve life terms. So if the next chief executive names two or three or six justices who are in their 40s or 50s, it's possible that even if said President only serves a single term, his influence could last a couple of generations. However, the logic runs the other way, as well. I heard Lanny Davis, a Clinton supporter, on the news a day or so ago, admitting that even though he preferred Hillary, his choice in favor of Obama boils down to the fact that there are 4 judges (the "conservative" ones) who probably would rule that Roe v. Wade was wrongly decided, given a chance. And Obama was the best-case scenario for keeping that from becoming five. (I find it interesting that the same folks who can't be bothered to find that raping a human being in childhood is as bad as murder also share the opinion that snuffing out the life of that same child in utero isn't really killing at all... there is, at least, a perverse consistency here.)

Now, don't get me wrong. A President Obama would SAY all sorts of correct things about protecting children. Just like he SAYS things about having empathy for the poor, backwoods, unsophisticated hicks like me who think that abortion is a sin. But he would pursue policies and make appointments that have the effect of making those words meaningless. I read a really thought-provoking piece over at NRO's Bench Memos that pointed out, I think correctly, that another Illionois Senator, Stephen Douglas (of the Lincoln-Douglas debates), did the same thing with regard to slavery, and Honest Abe called him on it.

There is, however, at least a small glimmer of hope for folks like me. As I have written elsewhere, I'm resigning myself to the very strong possibility that 1600 Pennsylvania Avenue will be the Obama residence in late January. But the two oldest judges are Stevens (80-something) and Ginsburg (77?), and they are both on the liberal end. So perhaps 4 or even 8 years of Obama might produce something like a status quo ante, kicking what I see as the worst-case scenario down the road a few years. I'll continue to pray that 70-year old Justice Scalia (my favorite--whose dissent in the child-rape case is, characteristically, several degrees of magnitude more sensible that Kennedy's majority opinion) continues to eat right and take his Geritol.