If John McCain wins the presidency – and gets to appoint one or more U.S. Supreme Court justices – America’s 220-year experiment as a democratic Republic living under the principle that “no man is above the law” may come to an end.
To put the matter differently, if a President McCain replaces one of the moderate justices with another Samuel Alito – as McCain has vowed to do – then Justice Department lawyer John Yoo’s extreme vision of an all-powerful Executive could well become the new law of the land.
On May 6 in Winston-Salem, North Carolina, during a speech aimed at appeasing conservatives, McCain promised to appoint justices in the mold of George W. Bush’s selections, Justice Alito and Chief Justice John Roberts, expanding the court’s right-wing faction that also includes Justices Antonin Scalia and Clarence Thomas.
Those four justices already have embraced the Bush administration’s radical notion that at a time of war – even one as vaguely defined as the “war on terror” – the President possesses “plenary” or unlimited powers through his commander-in-chief authority.
As expressed in classified memos by Yoo when he was a key lawyer in the Justice Department’s Office of Legal Counsel, there should be, in essence, no limits on what a war-time President can do as long as he is asserting his duty to protect the nation.
Alito also is associated with this concept of a “unitary executive,” holding that a President should control all regulatory authority, define the limits of laws via "signing statements" and – at his own discretion – override treaties, the will of Congress and even the Bill of Rights and the Constitution.
Under this theory, a President can cite his commander-in-chief powers to spy on citizens without warrants, imprison people without charges, authorize torture, order assassinations, and invade other countries without congressional approval.
With just one more Alito, that view would claim control of the U.S. Supreme Court and allow a new five-to-four majority to, in effect, rewrite the Constitution. The founding principle of the United States – that everyone possesses certain “unalienable” human rights – would be history. [For details, see Neck Deep: The Disastrous Presidency of George W. Bush.]
All this would occur under the right-wing assertion that McCain was appointing justices who “strictly interpret” the Constitution. It has been a long-held tenet of the conservative movement that “activist” judges were at fault for outlawing racial segregation and other statutes that discriminated against minorities.
More recently, the Right has concentrated its wrath on Supreme Court rulings that struck down laws criminalizing abortion and homosexual acts.
But the “strict constructionist” phrase is really a euphemism for a double standard, objecting to judicial decisions that conservatives don’t like while justifying judicial activism when it serves right-wing causes, such as giving President Bush authority to brush aside the Constitution as he prosecutes the “war on terror.”
Even if the clear intent of the Founders was to avoid a tyrannical Executive by placing key war-making powers in the hands of the Legislature, right-wing legal scholars have favored overturning those principles in the name of an all-powerful President.
So, on one level, McCain might choose another Alito or two in order to reverse Roe v. Wade or allow states to crack down on homosexual rights. But he also would be enshrining the concept of a “unitary executive.”
Thus, perhaps more than any other question, the November election will settle whether a future Supreme Court will reshape the United States into an imperial system both at home and abroad – or roll back President Bush’s expansion of executive power in the direction of the Founders' original vision.
There is also a political component on the Democratic side to McCain’s May 6 promise to Republicans that he will help the Right consolidate control of the federal judiciary, including the Supreme Court.
While many supporters of Hillary Clinton – especially middle-age white women – have told pollsters that they won’t vote for Barack Obama if he wins the Democratic nomination, that position might ensure that a core feminist principle, “reproductive rights,” will be struck down by the Supreme Court.
In other words, to show their anger over the defeat of a female presidential candidate, Clinton supporters might end up contributing to a historic defeat for feminist rights, including the possible outlawing of abortions in many states.
However, beyond the issue of abortion and other privacy rights, Democrats and all Americans will be faced with a fundamental question when they vote in November:
Will they continue the noble experiment of a democratic Republic with "unalienable" rights for all, what the Founders envisioned with the Declaration of Independence in 1776 and the Constitution of 1787?
Or, do Americans want to go down the path marked by the likes of Yoo, Alito and Bush – ceding virtually all power to one individual who can operate beyond all laws and outside the rules of human behavior – and do so with the blessing of the U.S. Supreme Court?
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This story was published on May 6, 2008.