COLUMBIA — In the football game of election coverage, the U.S. Supreme Court is a benched senior. While the public shines a bright spotlight on candidates for the presidency and Congress, the judicial branch generally is left alone. They aren't elected, and they need do nothing to convince voters they're doing a good job.
But according to some, the Supreme Court plays an important role in some of the biggest issues in elections. On Thursday, The Federalist Society and the American Constitution Society held a debate at MU's School of Law to assess the possible impact of the 2008 election on the Supreme Court, and the effect that court might have on major issues.
The debate, moderated by law professor Frank Bowman, featured Stephen McAllister, solicitor general for the state of Kansas and former dean of the University of Kansas School of Law, and David Frederick, a former assistant to the solicitor general of the United States and frequent advocate before the U.S. Supreme Court. Both clerked for former Supreme Court Justice Byron White. McAllister also clerked for Justice Clarence Thomas.
McAllister and Frederick discussed factors that influence the direction (usually expressed as liberal or conservative) of the Supreme Court during the next four to eight years. Those factors, they said, boil down to who leaves the court, who is elected president and who controls the Senate.
The first and least predictable factor they discussed is whether any justices will retire or die. Presidents can't nominate new justices — and therefore influence the philosophical direction of the court — until a justice either dies or retires, but McAllister and Frederick argue this factor is intertwined with the upcoming election. If Barack Obama is elected and liberal Justice John Paul Stevens were to leave, Obama would have little opportunity to change the court to his liking. The reverse would be true for a more conservative president such as John McCain, they said.
The next president may have the opportunity to nominate a justice or two, but he can also change the direction of the Department of Justice through his appointment of a solicitor general, the person conducting all litigation on behalf of the United States in the Supreme Court and supervising litigation in federal appellate courts. They said that appointment will have a big impact on how the executive branch argues cases and therefore how successful the executive branch is.
They said the Senate also plays an important role regarding justices. If the Senate is evenly divided, neither Obama nor McCain as president would be able to push through nominees that philosophically are too far from the center, according to McAllister and Frederick. If Democrats continue to control the Senate,, Obama would have leverage to nominate more liberal justices, and McCain would confront greater resistance to conservative nominees. But if Democrats achieve filibuster-proof control by controlling 60 of the 100 seats, Obama would have an even greater chance of placing whomever he wanted on the court.
Frederick argued that McCain would have a greater chance to dramatically change the direction of the court because it is the liberal justices who are more likely to step down or experience health problems in the near future. Frederick also pointed out that if McCain were able to push a young and fairly conservative nominee through Senate, that would outfit the Court with four young conservative justices and a probable majority for a long time to come.
Both McAllister and Frederick argued that it is important to remember the labels "conservative" and "liberal" do not apply to the Supreme Court in the same way they apply to politics in general. Justices are considered liberal or conservative based on the way they view the role of the judicial branch and how they interpret the U.S. Constitution.
McAllister stressed that it's impossible to know what will happen with judges. Some justices remain on the court much longer than expected,and others leave unexpectedly or suddenly.
"No matter who wins, we're really just having fun speculating in an educated sort of way ... because there are a lot of unknowns about who might leave the court and what the circumstances might be," McAllister said.
Jonathan Hutcheson, president of the American Constitution Society at MU, said the debate was held in part because of the upcoming election but also for the sake of intellectual curiosity.
"It's always healthy to discuss these issues openly in a way that's structured and well informed," Hutcheson said. "Instead of just getting snapshots here and there on these issues, it's a little bit more of a focused discourse on the subject matter."
Carolyn Hamilton, president of The Federalist Society at MU, said the goal was to represent different views and foster discussion.
"Something that both of our groups strive to do is just open up everything for discussion," she said. "Neither of us are political organizations. We just like to open up current topics."