The president and the Supreme Conscience

marbury v. madisonThree major American newspapers published articles in the last two days on the significance of the president's power to appoint Supreme Court justices and how that significance is impacting, or not impacting, the current presidential election. The underlying issue these articles attempt to highlight is the power the Supreme Court has in shaping the lives of Americans and how people often forget that when they consider for whom they will vote. For good reason, primarily the economic meltdown, the Supreme Court hasn't been much of a political item so far, but these articles point out how that is about to change. The issue is heavy in religious and moral undertones since the Supreme Court has long taken the job of speaking for the country's moral conscience. Or at least what it thinks the country's moral conscience is, which is a huge reason why this is such a significant issue. After all, for more than 200 years (see image), the Supreme Court has taken on the hefty job of having the final say on what laws are permissible under the U.S. Constitution. To varying degrees and depending on your political stripes, the Supreme Court is that institution of nine people that tells us when our laws go too far.

Here is The Washington Post quoting Democratic Presidential Nominee Barack Obama on the issue:

Obama said in a speech this year that the court is in agreement much of the time. But on the important constitutional issues that divide the justices, "adherence to precedent and rules of construction will only get you through 25 miles of the marathon," Obama said.

"That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy." ...

When the court narrowly decided that detainees held in the military prison at Guantanamo Bay, Cuba, have the right to access federal courts, McCain called it one of the "worst decisions in history." Asked two months later what prompted such a strong denunciation, he said: "Sometimes I'm given to a little hyperbole."

To many religious people in the United States, the treatment of detainees in our military prisons are one of the most significant moral issue of our time. You won't hear this said much these days, but that sentiment exists.

The article by The Los Angeles Times focused heavily on the issue of abortion, which is what many people think of when the issue of the Supreme Court is mentioned. The article quotes advocates on both sides and includes a lot of conventional wisdom regarding the make-up of the current court and the direction the issue of abortion is headed in the United States:

But that doesn't mean abortion or the fate of the Roe decision is a rallying cry on the campaign trail for either Democrats or Republicans. The two parties have staked out opposite positions, but their candidates rarely mention them when campaigning.

The abortion issue is enormously important to the base of both parties, political strategists say, but it is a touchy and difficult matter to raise with an audience of swing voters and those who are undecided.

"People are conflicted about it," said Peter Fenn, a veteran Democratic strategist. "If you are campaigning in Scranton, you want to make the lunch-bucket argument. When the economy is driving the race, you don't want to ignite the culture wars."

The New York Times has a slightly different analysis in an article Monday that says that abortion, along with other hot-button social issues, could very well become the issue in key swing states:

Both campaigns are also watching to see if the future of the Roe v. Wade decision, as well as issues like gay marriage and school prayer, become galvanizing forces for swing voters in battlegrounds like Ohio and Pennsylvania. Advisers on both sides say they doubt social issues will match the economy’s problems in this election, and Obama advisers say they are being especially vigilant about not allowing anything to overshadow that issue.

My follow-up question to those advisers would be whether or not they see those economic issues as all that far apart from the social issues. See this later section of the NYT article:

They point to remarks that Mr. Obama made on CNN where, after saying he did not believe "in a bunch of judicial law-making," he went on to describe in relatively explicit terms for a presidential candidate what sort of perspective he would want his nominees to have.

"What I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can’t have access to political power and as a consequence can't protect themselves from being -- from being dealt with sometimes unfairly, that the courts become a refuge for justice," said Mr. Obama, who taught constitutional law for years at the University of Chicago.

Obama's quote could just as easily be describing a traditional social issue such as abortion, but it could also be describing an elderly couple who lost their retirement savings in the recent economic debacle. To what extent would the liberal-leaning ideas of the Social Gospel inform a Supreme Court nominee's business and economic principles and values? To what extent will reporters cover this issue along with the often-mentioned issues of abortion and gay marriage?

Image of an inscription on the wall of the Supreme Court Building from Marbury v. Madison, in which Chief Justice John Marshall (the statue in the image's foreground) outlined the concept of judicial review used under a Wikimedia Commons license.

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