The Next Supreme Court

The LA Times contemplates the next Supreme Court under Obama or McCain.  This exposition from Obama struck me as outlandish:

Before his election to the Senate, Obama taught constitutional law at the University of Chicago. He said most cases, even those at the high court, could be decided by looking at the law and precedents.

"Both a [conservative Justice Antonin] Scalia and a Ginsburg will arrive at the same place most of the time," he said during the Roberts confirmation hearings. "What matters at the Supreme Court is those 5% of cases that are truly difficult. In those cases, adherence to precedent and rules of construction will only get you through 25 miles of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy.

"In those difficult cases, the critical ingredient is supplied by what is in the judge's heart."

Kidding?  I would guess that the most controversial case of my lifetime has been Roe v. Wade.  Does Obama seriously think that a conservative judge commited to applying existing law would have followed most of the way down the trail blazed by Blackmun?  I doubt it.

This bit of background on how the court might shift is interesting:

Whoever is elected in November will probably have the chance to appoint at least one justice in the next presidential term. The court's two most liberal justices are its oldest: John Paul Stevens turned 88 last month, and Ruth Bader Ginsburg is 75.

McCain promised that, if elected, he would follow President Bush's model in choosing Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

That could establish a large conservative majority on the court for years. With conservatives in full control, the court would probably overturn Roe vs. Wade and the national right to have an abortion. The justices also could give religion a greater role in government and the schools, and block the move toward same-sex marriage.

If elected, Obama would be hard-pressed to create a truly liberal court. But by replacing the aging liberal justices with liberals, he could preserve abortion rights and maintain a strict separation of church and state.

I assume a more conservative court would chip away at Roe v. Wade, as with their support of the ban on partial birth abortions, but would Roe be overturned, and would that be a bad thing for the nation or the left?  The NY Times was oddly reassuring back in 2005. [Patterico  describes this LA Times passage as something that would "look great, for example, in a NARAL mailer", but doesn't find the votes.]

As to the notion that a McCain court would slow the march to gay marriage, I can't imagine a McCain court would block laws duly passed by the states or Congress.  Of course, libs hoping for an end-run around the legislative process would be disappointed, but surely that is not their hoped-for result under an Obama Presidency, is it?  Hmmm?  That said, based on the vote counts above, Obama could extend the tenure of some liberal seats but not expand their number.

Comments

[Gmax]

Looks like Obama would end up a little short in his marathon and not make the finish line. A full marathon is 26 miles 385 yards. Leaving Barack to be about a 1/4 from finishing. Prophetic?

[Danube of Thought]

Roe will never be overturned, and if it were it would have very little effect. Several states had liberalized abortion rights before Roe, and as Ruth Ginsburg has observed, if the Court had left the matter alone we would probably be close to where we are now. And we'd have got there without the corrosive effect on the integrity of judicial decision-making.

Obama is quite simply wrong in his analysis. It's pretty astonishing, if he truly believes what he said.

[Gmax]

Well I think this is a true dog whistle. Instead of Bush talking in code about Obama, Obama is employing the dog whistle to gin up the pro abortion crowd. DOT is correct, Roe v Wade overturned does not stop abortion it merely gives the decision back to the several States. It would be legal immediately in many States and several would rush through legislation pretty quickly. It would be illegal in some states but with a train ticket, that is only a minor inconvenience for those so intended.

[Buford Gooch]

So, most supreme court decisions are decided 9-0? Or at least, almost all supreme court decisions have Scalia and Ginsburg on the same side? Perhaps I've been missing the vast majority o decisions, but I don't remember either of those things to be true.

[clarice]

I told you his brain power was vastly overestimated. He told his masses in Oregon that Iran poses no threat. How's that for sharp thinking?
Oh, and in addition to all the other things it is verboten to raise, Michelle has been added to the list by the Messiah.
In other good news Ferraro has said O has made so many sexist moves that even if he gets the nomination she's not sure to support him. Thank heaven for small things.

[Neo]

The "Roe v. Wade" argument can be reduced to a labor [no pun intended] issue.

All those folks at NARAL would actually have to work for a living, but, at the end of the day, for 35+ states nothing would change after some hysteria for about 6 months.

[Jane]

The man is making gaffe after gaffe after gaffe, to the overwhelming applause of 75,000 people. It is truly stunning. I wonder if Hitler was this charismatic.

[Gmax]

Jane

Never forget that the hard left has always had two skills, drawing sizable crowds at organized events and making a lot of noise. They are not the majority and I would place no significance in a huge crowd anywhere.

Didnt he draw a crowd of 30K + in Pa? So how did the Pa election turn out again?

Now while Oregon is full of moonbats particular the ones who will vote in a Democrat primary, so he may well win there. But polls are seeming to show a tightening to single digits there, which has to be read as a problem by honest observers of the election. And better yet, Hill is now ratcheting up her Michigan and Florida have to have a say speech, and says until there is a nominee ( from all 50 States ) she is in. That means credential fights in committee for both delegations and maybe even a contested floor ballot.

[Porchlight]

OT-

Via Geraghty, check out these new ideas for bumperstickers. If anyone actually decides to sell them I'd put one on my car in a heartbeat. Given my age, I especially like "McGovern: It's Time to Ask Your Parents"

[MikeS]

The Justices are not elected and therefor are insulated from the will and the wrath of the people in a way the other branches of government are not. Because of this, it is exceedingly egregious whenever the Judiciary would usurp the power of the Legislative Branch to make new laws. The correct word for that is not empathy but hubris.

[cathyf]

Never forget that the hard left has always had two skills, drawing sizable crowds at organized events and making a lot of noise. They are not the majority and I would place no significance in a huge crowd anywhere.

Back when I was in college we had a joke about the Spartacus Youth League:

Q: Why do the Sparts have their meetings in a closet with mirrors?

A: They believe in mob psychology.

[Thomas Jackson]

Ever notice how the media always tells us dhimmierat presidential candidates are so bright? Ever notice that the same appreciation of these people's IQ drops by 90% once they are beaten in an election or have been in office for a year.

Gore, Kerry, Clinton or even the most brillant woman in the world, the Hildabeast.

If all judges think alike and reach the same conclusions I assume the Supreme Court would always agree in its decisions.

Right.