At this point, I don't believe John McCain will win the election. However, we must think about what could happen if he did, and what could happen if Barack Obama did. No one is really talking about the effects this election will have on the Supreme Court, but any change of Justices could change the rest of your life.
Right now, the Supreme Court is just about equal. Liberal Justices: Stevens, Ginsburg, Souter, Breyer; Conservative Justices: Scalia, Thomas, (Chief Justice) Roberts, Alito; swing vote: Kennedy. For the most part, the Justices vote consistently with their party, however, you can't ever expect them to. For example, the McCain-Feingold bill had parts that Alito and Roberts voted unconstitutional. On the other hand, Obama has said that the decision banning child rapists from execution was wrongly decided, despite the fact that all of the liberal justices and Kennedy voted to ban the executions. One can never be sure a Justice will vote with their party.
Stevens, Ginsburg, and Souter are rumored to perhaps step down if Obama is elected. If that happens, Obama would more than likely replace them with other younger liberals, thus, leave the political balance undisturbed and setting the stage for them to be on the Supreme Court for many years. These three Justices would more than likely not step down if McCain were elected because they don't want to be replaced by someone who is inconsistent with their political ideologies.
Now, let's say that McCain is elected, and God forbid, something happens to one of the liberal justices (Stevens is 88 and the second oldest Justice in history to still be serving). McCain has said he would replace any of the Justices with people like Roberts or Alito, and someone who has a strict interpretation of the Constitution. However, he would have a hard time appointing a very conservative Justice because of the democratic controlled Congress. If Congress is controlled by the republicans, this would change things greatly. How would it affect the law? Well, McCain wants Roe v Wade overturned. In 2004, it almost was; Justice Kennedy was on the side with the conservatives, but then switched sides to effectively not overturn Roe v Wade.
So far on the seemingly empty docket for this term, the Justices have a First Amendment case about how much protection networks should be given in the event of failure to block fleeting obscenities. The court will also decide, among other things: Whether tobacco companies can be sued under state law over ads for light cigarettes; Whether courts can block the Navy from using SONAR during training because of its effect on marine life; Whether drug companies can be held liable for harm their products cause even though they’ve provided federally required warnings; Whether Justice Department officials can be sued over the treatment of individuals detained after Sept. 11; Whether a city can display a donated Ten Commandments in a public park but reject other donated religious monuments.
If more conservative Justices are appointed, it will not just affect Roe v Wade; it will affect separation of church and state, affirmative action, gun laws, business regulation, civil rights, the Voting Rights Act, death penalty, etc. Changes in any of these laws would result in massive social changes among Americans. Yale Law Professor Bruce Ackerman coined the term "constitutional moments" to describe rare moments in history, such as the Civil War, the Great Depression, and the Civil Rights Movement, when enormous changes in society and government radically revised the American people's thinking about the Constitution and laws.
Perhaps changes on the Supreme Court would result in one of these "constitutional moments," but until we know who the president will be, and who the new Justices will be, no one can be certain of anything.
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