Fathering the bench

When asked once what was the biggest mistake to come out of his administration, President Eisenhower replied that there were “two of them, and they’re both sitting on the Supreme Court.”

Former Supreme Court Justice Sandra Day O’Connor compared the relationship between a president and his judicial nominees to that of a father and child. The child will eventually turn 18, move away from home, likely stray from the politics she was raised on, and ultimately outlast her father in both tenure and legacy. Justices Souter and Stevens, two of the Court’s more liberal decision-makers, were, after all, both nominated by Republican presidents, George H.W. Bush and Gerald Ford.

Yet our current president made sure of two things: that his nominees would vote staunchly conservative on issues like abortion, gay marriage, and corporate power, and that they would not be stepping down anytime soon.

At 53, Chief Justice Roberts is the youngest serving justice on the Supreme Court. Although Roberts is not the youngest nominee to have been appointed to the Court (Clarence Thomas was appointed by Bush I at 43), he is the youngest to serve as chief justice in more than 200 years (John Jay was appointed at age 44 in 1789, and John Marshall at 45 in 1801).

When it comes to lifetime appointments, 53 is practically teenage. In fact, the Court’s most conservative members are also among its youngest, with Justice Alito at 58, Justice Thomas at 60, and Justice Scalia a youthful 72. Yes, retirement looms far on the horizon for the Court’s right wing, while the next expected retirements are from liberal justices Stevens, who is 88, and Souter, who, although only 69, has overtly expressed his desire to leave Washington for good to return to his native New Hampshire. Next in line would likely be Justice Ginsburg, who at 75 is also among the four-person stronghold of liberal rulings.

The result of next month’s presidential election, therefore, could set the court’s direction for a generation. Replacing two liberal justices with two conservatives would tip the already rightward leaning Court headlong into a decidedly conservative super-majority. In concrete (and more hair-raising) terms, this would mean fewer abortion rights (if any were to remain), fewer rights for criminal defendants, more expansive rights for gun owners, and less liability for big business.

Take the issue of preemption, which has exemplified the conservative Court’s position on consumer rights and corporate liability. The doctrine of preemption throws out a lawsuit if a court finds that Congress intended for the law to be regulated by a federal agency alone, as opposed to being regulated on a state level, where anyone can bring suit. Preemption thus bars most lawsuits against those industries under its wing. Last term, a ruling on preemption from the Supreme Court granted near immunity to manufacturers of medical devices (even faulty ones), and this term the pharmaceutical industry hopes to claim a like victory in Wyeth v. Levine.

Preemption launched this new October term last week with Altria v. Good, in which Philip Morris argued that claims of fraud in cigarettes labeled “light” or “low tar” are preempted because, according to Philip Morris and other tobacco companies, only the Federal Trade Commission can decide what is fraudulent or not, not the millions of consumers affected by such fraudulent health advertisements. In oral argument last week, the justices seemed unlikely to pull a majority vote against preemption.

In November, Diana Levine, a musician from Vermont, will argue her case in court. Levine’s arm was amputated as the result of a mis-administered anti-nausea drug called Phenergan. Drug giant Wyeth claims that if the drug must be administered in a particular way, such labeling directions should come only at the behest of the Food and Drug Administration, not as a result of individual tragedies such as that of Ms. Levine.

Deference to big business over individual rights is a hallmark of judicial conservatism, and it is one of the many products of a Court whose two recent appointees are vocally right-wing. Controversial social issues like abortion and gay rights would be no less affected by a conservative president, whose judicial offspring will reflect the ideals of the party base that elected him.

In less than three weeks, when voters cast their ballots for the big names in lights, they won’t see the smaller names that are yet to be born from a new administration — not only the Supremes, but the host of federal judges the next president will appoint — names that will one day sit on courts across the country, affecting us in ways we never approved at the ballot box. •

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