National Catholic Register


Supreme Decision


Register Correspondent

October 19-25, 2008 Issue | Posted 10/14/08 at 2:11 PM


WASHINGTON — Increasingly, the issues nearest and dearest to American voters’ hearts aren’t decided by voters. They’re decided by judges.

And so the next president might have his most profound effect on issues of life, marriage and Americans’ personal liberties indirectly, by appointing federal judges.

Sens. Barack Obama and John McCain make very different claims about their judicial philosophies. Whoever wins the Nov. 4 election could replace at least two Supreme Court justices and nominate hundreds of appointees to the U.S. appellate and district courts.

Courts are increasingly deciding challenges to laws that safeguard parental and property rights and freedoms of conscience, speech and religion.

Whether judges uphold these laws or override the decisions of voters and elective representatives depends on their judicial philosophy, and legal experts agree that future federal court appointments will reflect the next president’s judicial philosophy.

These lower court positions are pivotal because only a small percentage of cases reach the Supreme Court, noted Boston College Law School Professor Scott FitzGibbon.

“Before the next presidential term is over, four of the current Supreme Court justices will have reached their 75th birthday,” he said. “Vacancies are highly likely.”

This is critical to the issue of protecting human life, as the nine-member court now has a predicted margin of only one in favor of upholding Roe v. Wade. Two justices who support Roe are expected to leave.

“We can expect Justices John Paul Stevens and Ruth Bader Ginsburg, a cancer survivor, to step down during the next administration,” said Benjamin Bull, chief counsel for the Alliance Defense Fund, a religious liberty group.

Along with Stevens, 88, and Ginsburg, 75, Justices David Souter, 69, and Stephen Breyer, 70, have consistently supported abortion (see related story on the Books and Education page).

Justice Anthony Kennedy, 72, has opposed a ban on abortion but supported strict regulation.

On the other hand, Justices Clarence Thomas, 60, and Antonin Scalia, 72, have said that Roe should be overturned. The two latest appointments, those of Chief Justice John Roberts Jr., 53, and Justice Samuel Alito, 58, had pro-life support.

While Obama opposed both appointments, McCain voted for them and has said he would appoint more judges in the cast of Roberts and Alito.

Bull explained: “These types of justices will pay strong adherence to the founders’ intent, as reflected in the Constitution. They’ll generally defer to the two democratic parts of our government — the legislative and executive branches. They will seek narrow decisions and avoid broad expansive and uncharted empowerment of the federal government. McCain will appoint justices with strong respect for the individual and private property rights.”

McCain calls Roe “a flawed decision that must be overturned,” and promises he “will nominate judges who understand that courts should not be in the business of legislating from the bench.”

His judicial philosophy, according to his website: “I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint … who know their own minds, and know the law, and know the difference.” The site also quotes McCain looking for justices that are “faithful in all things to the Constitution.”

Obama’s website contains no summary of his judicial philosophy, and his campaign declined four requests to supply one. But in his voting record and public speeches, he has come down clearly for justices who back unrestricted abortion and seek an “up-to-date” view of the Constitution.

Obama told a Planned Parenthood audience last year that he’s committed to appointing judges who will keep Roe in place. The first thing he will do as president, he said, is pass the Freedom of Choice Act (FOCA), which could nullify all state abortion regulations, such as informed consent and parental notification (More on FOCA in our editorial, page 8.)

As an Illinois state senator in 2003, he led the opposition there to a bill identical to the federal Born-Alive Infants Protection Act, which gives legal protection to babies who survive a botched abortion.

When asked in a 2007 primary debate how he would choose judges, Obama replied, “When you look at what makes a great Supreme Court justice, it’s not just the particular issue and how they rule, but it’s their conception of the Court. And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process: the outsider, the minority, those who are vulnerable, those who don’t have a lot of clout.”

Said Boston College’s FitzGibbon, “I think it likely that he would regard same-sex couples as among the vulnerable people who ought to be protected by the judiciary,” said FitzGibbon. “It’s likely that Obama’s judicial nominees would in various ways support the recognition of same-sex ‘marriage.’”

On his website, McCain says he “believes the institution of marriage is a union between one man and one woman.” Where state and local governments have enacted protections for the traditional family, “the role of the Court is not to subvert the rights of the people by legislating from the bench.”

McCain voted to define marriage as between a man and a woman, but more recently, he voted to kill the federal marriage amendment without even allowing it to be debated in the Senate.

Courts will impact other rights: parental, property, freedoms of conscience, speech and religion. Bull predicted that Obama justices would favor the interests of the state and McCain justices would favor the rights of individuals in conscience protection and property dispute cases.

And the ability of parents to opt children out of public school classes on religious grounds also hangs in the balance, concluded Hadley Arkes, senior fellow of the Ethics and Public Policy Center in Washington, D.C.

He referred to the fact that Massachusetts has allowed civil same-sex “marriage” following a 2004 court ruling. Now, parents who object to homosexual issues being presented to their young children are being told — in one case by federal judges — that they have no legal grounds even to be given prior opt-out notification.

Said Arkes, “If courts rule in favor of same-sex ‘marriage,’ you’ll have the same situation across the country that we have here.”

Gail Besse is based in Boston.

Supreme Court

At a Glance

Chief Justice

John Roberts, 53,

Bush, 2005

3 years

John Paul Stevens, 88

Ford, 1975

32 years


Scalia, 72

Reagan, 1986

22 years


Kennedy, 72

Reagan, 1988

20 years

David Souter, 69, Bush, 1990

17 years


Thomas, 60

Bush, 1991

16 years

Ruth Bader Ginsburg, 75

Clinton, 1993

15 years

Stephen Breyer, 70

Clinton, 1994

14 years


Alito, 58

Bush, 2006

2 years

Senators’ Votes on Justices

It’s not a surefire way to predict how a president would choose nominees for the Supreme Court, but here’s a list of how Supreme Court justices have viewed abortions, and how candidates have voted on nominations as U.S. senators.

Sen. Barack Obama has been in the Senate since 2005, and he has had a chance to vote on two U.S. Supreme Court nominees. Sen. John McCain has served since 1987, and he has had the chance to vote on eight Supreme Court nominees. Sen. Joseph Biden, Obama’s running mate, has served since 1973, and he has had a chance to vote on 12 Supreme Court nominees. (Gov. Sarah Palin, McCain’s running mate, has never served in the Senate.)

John Paul Stevens Decided for upholding Roe v. Wade (June 1992). Confirmed, 98-0, in 1975. Biden Yea.

Robert Bork Considered to be against abortion. Rejected, 58-42, 1987. McCain Yea; Biden Nay.

Anthony Kennedy Decided to uphold Roe v. Wade (1992).

Confirmed, 97-0, 1987. McCain Yea; Biden No vote.

David Souter Decided to uphold Roe v. Wade (1992). Confirmed, 90-9, 1990. McCain Yea; Biden Yea.

Clarence Thomas Decided against upholding Roe v. Wade (1992). Confirmed, 52-48, 1991. McCain Yea; Biden Nay.

Ruth Bader Ginsburg Says government should fund abortion (2006). Confirmed, 96-3, 1993. McCain Yea; Biden Yea.

Stephen Breyer Supports Roe v. Wade (Jan. 1998). Confirmed, 87-9, 1994. McCain Yea; Biden Yea.

John Roberts Jr. Considered to be against abortion. Confirmed, 78-22, 2005. McCain Yea; Obama Nay; Biden Nay.

Samuel Alito Jr. Considered to be against abortion. Confirmed, 58-42, in 2006. McCain, Yea; Obama Nay; Biden Nay.