The ascent of John McCain to the apparent Republican nomination has discouraged some conservatives, who have expressed a willingness to sit out 2008 and let a Democrat win the White House. They claim, hyperbolically, that no real policy differences exist between McCain and either Barack Obama or Hillary Clinton, and that having a Democrat take the blame for the coming debacle will make it easier to elect Republicans later. An interesting analysis of the direction of the Supreme Court in the Washington Post should serve as a reminder of one area that will turn out very differently:
The increasingly conservative court has said often of late that it is getting out of the business of finding a right to sue that is not explicitly stated in the law — what lawyers call an “implied cause of action.”
Two discrimination cases that the court heard last week, both concerning retaliation, made plain that a sizable number of justices are deeply resistant to finding such rights and to expanding those it previously recognized. …
“I agree with you entirely that it would make sense to provide a cause of action for retaliation, but we don’t write statutes,” Scalia said. “We read them. And there’s nothing in this statute that says that.”
Chief Justice John G. Roberts Jr. wondered whether the court’s respect for stare decisis should extend to cases it believes were wrongly decided, and Justice Anthony M. Kennedy said he could not find a way to read the law that gave plaintiffs the right they wanted.
The election will present American voters with real choices on policy, especially on taxation, foreign policy, expansion of government, and national security issues, despite the complaints of the disappointed. It also provides a stark choice on the direction of the judiciary.
At least two Supreme Court justices will likely leave in the next four years, both of them from the Left, John Paul Stevens and Ruth Bader Ginsburg. The election will determine whether the court continues to turn in a more constructionist direction, forcing policy back to Congress where it belongs, or whether activists can outlast the constructionists. Jurists nominated by Obama or Hillary will have a much different idea of the Supreme Court’s role than those nominated by McCain.
Elections matter. The next President will have a mandate to determine the direction not just of the Supreme Court but the entire federal bench. Conservatives can either help ensure that the work begun to get the judiciary out of the policy-imposition business will continue or allow it to get reversed.