The US Constitution is the oldest working constitution in the world. But it has been under siege recently and the legal stakes in the Obama-McCain election could not have been greater. McCain, for example, had publicly stated that he would (attempt to) reverse Supreme Court decisions regarding Guantanamo Bay if he was elected.
Four of the nine current Supreme Court judges are regarded as conservatives: Chief Justice Roberts together with Justices Scalia, Thomas and Alito. There are four liberal judges: Justices Stevens, Ginsburg, Souter and Breyer. The ninth judge, Justice Kennedy, was a Ronald Reagan appointee and is no liberal, but nor is he a conservative ideologue.
This delicate balance has resulted in Supreme Court cases of major constitutional importance being decided by a bare 5-4 majority. With international law under open attack from the Bush administration and its reliance on the so-called unitary executive doctrine, which would allow the president a wide range of powers unfettered by Congress, the court has had one of its busiest and most testing periods of late.
It upheld the constitutional right to possess handguns; refused to overrule Roe v Wade (1973) and thereby end constitutional protection for abortion rights; rejected the Bush administration’s legal basis for detention without trial in Guantanamo Bay without any form of judicial review; struck down criminal sodomy laws and prohibited the death penalty for crimes other than homicide.
Justice Kennedy’s vote was usually the casting one in these cases and he used it both ways. His “living instrument” view of the constitution was strongly endorsed by President-elect Barack Obama, who said: “[The constitution] must be read in the context of an ever-changing world. How could it be otherwise?”
So what will President Obama do? The precise political composition of Congress is still undecided. The Democrats did not win a super-60 majority in the Senate, which would have enabled them to defeat any Republican filibusters (including judicial appointments).
Given the age of the current judges, it seems likely that Obama will get to appoint two or three Supreme Court judges in his first term. I hope he will be a little more exacting in seeking a proven judicial record than Bush was when he put up his White House counsel Harriet Miers on the basis that she was “plenty bright”. Even the Republican-controlled Senate refused to endorse that level of lack of qualification.
Obama’s position on key constitutional issues changed noticeably during his campaign. In June 2008 he reversed his position on the Washington handgun ban and finally decided that he agreed with the Supreme Court’s refusal to strike it down. It is unclear if he was merely defending the constitution and the rule of law.
And although once a vocal critic of capital punishment, in the very same month he opposed the Supreme Court decision to strike down Louisiana’s death penalty for child rape not involving murder. He claimed that the death penalty would have been constitutional in that class of case.
As with any political manifesto, it remains to be seen whether Obama will feel obliged to stick to those positions when in office. He is universally renowned for his diplomacy and his account in The Audacity of Hope of the current judicial nominations is the epitome of his languid and detached style – giving little of his own views and intentions away.
But can we rely on Obama to start the renaissance of international law and order from which the most powerful country in the world has strayed so far? Of course, it is just too early to say, but for now I like to think, as so many said on 4 November, “Yes we can”.