(updated below w/reply to Orin Kerr)
There are all sorts of reasons to view last night's events as an extremely positive development, including the fact that it was a truly crushing repudiation of the right-wing faction that has dominated the Republican Party for the last two decades. The GOP is very close to being nothing more than a broken regional party, confined almost entirely to the Deep South and a few small, scattered states in the Midwest, and entirely uncompetitive in huge swaths of the country. All of that merits, and will undoubtedly receive, lavish analytical attention (and celebration) over the next few days and weeks.
But for the moment, here are three extremely clear, indescribably significant reasons why last night was important:
Court watchers almost unanimously believe that those first two Justices -- John Paul Stevens and Ruth Bader Ginsberg -- are certain to leave the court at some point over the next four years, while the third -- David Souter -- is highly likely to do so. To understand why that matters so much, just consider that all three of those justices were in very precarious, narrow majorities in crucial decisions such as these:
Boumediene v. Bush (2007): Invalidating Section 7 of the Military Commissions Act as unconstitutional because it purported to abolish the writ of habeas corpus and because the kangaroo Guantanamo process designed by Donald Rumsfeld's Pentagon and approved by Congress was a constitutionally inadequate substitute.
Hamdan v. Rumsfeld (2006): Declaring Guantanamo military tribunals to be both unconstitutional and illegal because the President lacked the inherent constitutional authority under Article II to order them and because they violated the Geneva Conventions' Common Article 3, the protections of which apply to all detainees.
Lawrence v. Texas (2003): Striking down a Texas statute criminalizing same-sex sodomy as a violation of the Due Process Clause and overturning Bowers v. Hardwick, decided only 17 years earlier, which upheld such statutes.
Had McCain won last night, it is virtually certain that at least two -- and probably all three -- of the above-listed Justices would have been replaced by those who would have decided those cases the other way, ensuring the opposite result. It is also quite likely that a McCain victory would have meant the end of Griswold, Roe and their privacy-protecting progeny, which is now likely to be preserved for decades to come.
With numerous cases likely to be decided by the Supreme Court in the next several years that linger from the years of Bush radicalism -- involving truly vital questions of executive power and core individual liberty -- a McCain/Palin victory would have been, for this reason alone, a genuine disaster, possibly a final nail in the coffin of our constitutional framework. Now, the Court majority which decided these landmark cases of the past several years, imposed some limits on the presidency, and upheld those core rights in the face of a true onslaught will be revitalized and strengthened, and will ensure that the Roberts/Alito/Scalia/Thomas faction remains, in most matters, an impotent minority for many years to come, if not decades.
George Washington University Law Professor Orin Kerr -- a leading apologist for many (though not all) of the lawless and radical Bush policies of the last eight years -- last night smugly predicted that Democrats who spent the last eight years opposing executive power expansions and an oversight-free Presidency will now reverse positions, while Republicans who have been vehement advocates of a strong executive and opposed to meaningful Congressional oversight will do the same. I have no doubt that he's right to some extent -- some Obama supporters will become overnight believers in the virtues of a strong executive, defend everything he does, and will resent "intrusions" into his power, while huge numbers of Republicans will, just as quickly, suddenly re-discover their alleged belief in checks and balances and a limited federal government.
But I genuinely expect that those who have made the restoration of our Constitutional framework and preservation of core liberties a top priority over the last eight years will continue to pursue those goals with equal vigor, regardless of the change of party control. And few things are more important in that effort than having a Supreme Court majority that at least minimally safeguards those principles. It's hard to overstate the importance of last night's election outcome in ensuring a reasonably favorable Court majority and, even more so, in averting what would have been a real disaster for our basic rights and system of government had John McCain been able to replace those three Justices with GOP-approved nominees. By itself, maintaining the Court more or less as is won't reverse any of the Constitutional erosions of the last eight years, but it is an absolute prerequisite to doing so.
UPDATE: Orin Kerr, who specializes in using professorial and self-consciously cautious language to endorse radical surveillance policies, feigns shock that I characterized his positions the way I did, and asks: "does anyone know what 'lawless and radical' policies I apparently served as an apologist for?" Kerr could start here (endorsing the Protect America Act as "relatively well done" and proclaiming that "the basic structure seems pretty good" -- the same law which Yale Law Professor Jack Balkin denounced as a "cowardly contribution[] to this slow-motion destruction of our constitutional system").
Then, Kerr might want to look here (attacking the decision of Judge Anna Diggs Taylor, which ruled that Bush's NSA warrantless spying program was illegal and unconstitutional, criticism which Kerr voiced far and wide despite acknowledged ignorance about the legal issues on which he was opining). Kerr could also look here (condemning as "bizarre" and "puzzling" the Fourth Circuit's decision in Al Marri v. Wright, which rejected the Bush administration's perverse claim that the President has the authority to detain even people legally inside the U.S. as "enemy combatants"). As I wrote at the time:
Anyone who objects to the court's decision -- and particularly anyone who seeks to vest the President with powers of indefinite, due-process-less military detention of individuals on U.S. soil -- is, by definition, advocating nothing less than the establishment of martial law inside the U.S. That is the precise point the court made, at page 72 (emphasis added):
"Absent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the President the power to exercise military authority over civilians within the U.S."
Kerr attacked that decision and insisted that Bush acted properly, legally and constitutionally in what he did to al Marri. Finally, here is Kerr praising the FISA Amendments Act of 2008 as "pretty good legislation" -- the same bill which retroactively immunized the telecoms from the consequences of their lawbreaking and which, as the ACLU put it, posed one of the most substantial threats to the Fourth Amendment in many years.
Those are policies that are radical and lawless. Kerr repeatedly served as an apologist for them -- hence, my characterization. The fact that someone uses professorial and caveat-filled language when defending indecent policies like these may make them civil, but not decent. Ask John Yoo (I'm not equating Yoo and Kerr), or see this superb satirical post on the vital and oft-overlooked distinction between civility and decency.
There are all sorts of reasons to view last night's events as an extremely positive development, including the fact that it was a truly crushing repudiation of the right-wing faction that has dominated the Republican Party for the last two decades. The GOP is very close to being nothing more than a broken regional party, confined almost entirely to the Deep South and a few small, scattered states in the Midwest, and entirely uncompetitive in huge swaths of the country. All of that merits, and will undoubtedly receive, lavish analytical attention over the next few days and weeks.
But for the moment, here are three extremely clear, indescribably important reasons why last night was important:
Court watchers almost unanimously believe that those first two Justices -- John Paul Stevens and Ruth Bader Ginsberg -- are certain to leave the court at some point over the next four years, while the third -- David Souter -- is highly likely to do so. To understand what that matters so much, consider that all three of those justices were in very precarious majorities in crucial decisions such as these:
Boumediene v. Bush (2007): Invalidating Section 7 of the Military Commissions Act as unconstitutional because it purported to abolish the writ of habeas corpus and because the kangaroo Guantanamo process approved by Congress was an inadequate substitute.
Hamdan v. Rumsfeld (2006): Declaring Guantanamo military tribunals to be both unconstitutional and illegal because the President lacked the authority to order them and because they violated the Geneva Conventions' Common Article 3, the protections of which apply to all detainees.
Lawrence v. Texas (2003): Striking down a Texas statute criminalizing same-sex sodomy as a violation of the Due Process Clause and overturning Bowers v. Hardwick, decided only 17 years earlier, which upheld such statutes.
There are all sorts of reasons to view last night's events as an extremely positive development, including the fact that it was a truly crushing repudiation of the right-wing faction that has dominated the Republican Party for the last two decades. The GOP is very close to being nothing more than a broken regional party, confined almost entirely to the Deep South and a few small, scattered states in the Midwest, and entirely uncompetitive in huge swaths of the country. All of that merits, and will undoubtedly receive, lavish analytical attention over the next few days and weeks.
But for the moment, here are three extremely clear, indescribably important reasons why last night was important:
Court watchers almost unanimously believe that those first two Justices -- John Paul Stevens and Ruth Bader Ginsberg -- are certain to leave the court at some point over the next four years, while the third -- David Souter -- is highly likely to do so. To understand what that matters so much, consider that all three of those justices were in very precarious majorities in crucial decisions such as these:
Boumediene v. Bush (2007): Invalidating Section 7 of the Military Commissions Act as unconstitutional because it purported to abolish the writ of habeas corpus and because the kangaroo Guantanamo process approved by Congress was an inadequate substitute.
Hamdan v. Rumsfeld (2006): Declaring Guantanamo military tribunals to be both unconstitutional and illegal because the President lacked the authority to order them and because they violated the Geneva Conventions' Common Article 3, the protections of which apply to all detainees.
Lawrence v. Texas (2003): Striking down a Texas statute criminalizing same-sex sodomy as a violation of the Due Process Clause and overturning Bowers v. Hardwick, decided only 17 years earlier, which upheld such statutes.
Had McCain won last night, it is virtually certain that at least two -- and probably all three -- of the above-listed Justices would have been replaced by those who would have decided those cases the other way, ensuring the opposite result. It is also quite likely that a McCain victory would have meant the end of Griswold, Roe and their privacy-protecting progeny, which is now likely to be preserved for decades to come.
With numerous cases likely to be decided by the Supreme Court in the next several years that linger from the past eight years of Bush radicalism -- involving truly vital questions of executive power and core individual liberty -- a McCain/Palin victory would have been, for this reason alone, a genuine disaster, possibly a final nail in the coffin of our constitutional framework. Now, the majorities that decided those cases and upheld those core rights in the face of a true onslaught will be revitalized and strengthened, and will ensure that the Roberts/Alito/Scalia/Thomas faction remains, in most matters, an impotent minority for many years to come, if not decades.
George Washington University Law Professor Orin Kerr -- a leading apologist of many (though not all) of the lawless and radical Bush policies of the last eight years -- last night smugly predicted that Democrats who spent the last eight years opposing executive power expansions and an oversight-free Presidency will now reverse positions, while Republicans who have been vehement advocates of a strong executive and opponents of Congressional oversight will do the same. I have no doubt that he's right to some extent -- some Obama supporters will become overnight believers in the virtues of a strong executive and will resent "intrusions" into his power, while huge numbers of Republicans will, just as quickly, suddenly re-discover the alleged belief in checks and balances and a limited federal government.
But I genuinely expect that those who have made the restoration of our Constitutional framework and preservation of core liberties a top priority over the last eight years will continue to pursue those goals with equal vigor, regardless of the change of party control. And few things are more important in that effort than having a Supreme Court majority that at least minimally safeguards those principles. It's hard to overstate the importance of last night's election outcome in ensuring a reasonably favorable Court majority and, even more so, in averting what would have been a real disaster for our basic rights and system of government. By itself, maintaining the Court more or less as is won't reverse any of the destruction of the last eight years, but it is an absolute prerequisite to doing so.
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