This presidential election has already been framed by pundits as "change versus experience," but the truth is that both candidates will offer change. Even George W. Bush offered change. But Barack Obama and John McCain offer up very different agendas of change when it comes to civil liberties.
Stacking the Court
If Justice Stevens is replaced with another liberal justice, the balance of power in the Supreme Court will essentially be preserved. But if he is replaced with a conservative justice, then the conservative bloc will be made up of five justices--enough for a simple majority, without Justice Kennedy's support. This could mean that many important decisions of the past 50 years could be reviewed and ultimately overturned.The Biggest Difference
The most significant difference between Barack Obama and John McCain relative to civil liberties is, without question, their stated positions on Supreme Court appointments.At present, the Court is made up of two blocs: A conservative bloc made up of justices Alito, Roberts, Scalia, and Thomas, a liberal bloc made up of justices Breyer, Ginsburg, Souter, and Stevens. Justice Anthony Kennedy, a centrist, is the tiebreaker on many controversial issues.
Over the next four years, at least one Supreme Court justice (relatively liberal 88-year-old John Paul Stevens) is likely to retire. What the president does following his retirement will have lasting implications for American civil liberties, especially privacy rights and racial justice issues.
The Senate's Role
The president's power to appoint new Supreme Court justices is not, however, completely unrestricted. Every potential nominee must be approved by the Senate. Over the past 30 years, only one Supreme Court nominee has been rejected by the U.S. Senate: Robert Bork in 1987, who was rejected by a Democratic Senate because of his radically conservative views.At present, the Senate caucuses with a one-vote Democratic majority. It is almost inconceivable that the Senate will not remain majority Democratic after the 2008 election cycle, but the 2010 elections could place the Senate in Republican hands. It is also possible that enough conservative Democrats could support a conservative judicial nominee to tip the balance in his or her favor.
The Right to Privacy
In Griswold v. Connecticut (1965), the Supreme Court ruled that the Constitution includes an implicit right to privacy that prevents the government from intruding into the most private personal decisions of individuals. Griswold struck down a ban on birth control; the same logic would later form the basis of Roe v. Wade (1973), striking down abortion bans, and Lawrence v. Texas, striking down sodomy laws.The liberal bloc and Justice Kennedy believe in a right to privacy, but justices Scalia and Thomas do not. The views of justices Alito and Roberts, though unknown, are assumed to be those of the conservative bloc. In the event of a McCain presidency, abortion, birth control, and gay sex could all potentially be recriminalized.
Race and Affirmative Action
In recent years, the Court has shifted away from approving affirmative action and active desegregation programs and towards an intent-based standard of race neutrality, one that does not allow the government to take an active role in fighting institutional racism.The Supreme Court's recent rulings in Parents v. Seattle (2007) and Crawford v. Marion County (2008) challenge a half century of Supreme Court civil rights precedents, and any additional shift to the right could have an even more dramatic effect.
In the latter ruling, in particular, three justices went so far as to say that the government may practice racial discrimination as long as it does not have a discriminatory intent--which would legalize poll taxes, among other things.
The President and Congress
Another significant area in which a president can offer positive reforms--or irredeemably screw up--is in his relationship with Congress. Under the Democratic Congress, there are considerable opportunities for new civil liberties protections--and a few possibilities for new civil liberties restrictions. If Congress shifts Republican, the ratio will likely be reversed.The president cannot, of course, propose legislation. But the president can increase the profile of a piece of legislation to the point where congressional leaders face pressure to allow a vote on it, and a president can veto any legislation that he finds unacceptable.
Can Either Candidate Give Us Comprehensive Immigration Reform?
The most significant live civil liberties issue facing Congress over the next session may be immigration reform. Both Obama and McCain support comprehensive immigration reform proposals that would provide citizenship paths for undocumented immigrants, but McCain has faced immense pressure from within his own party to change his position and has nuanced it to make it more acceptable to mainstream Republicans.McCain now says that he opposes addressing the fundamental question of what to do with undocumented immigrants until the issue of border security has been resolved. Since the border is 2,000 miles wide and securing it is not possible, this could amount to a moratorium on immigration reform under McCain that would not exist under Obama.
A Progressive Legislative Agenda
Many items on the congressional agenda are a response to the social policy agenda of the Bush administration and the previous Republican Congress. Instead of a constitutional amendment banning same-sex marriage, many Democrats support adding sexual orientation and gender identity to the list of protected categories for both federal hate crime laws and civil rights laws prohibiting employment discrimination. Instead of a ban on new abortion procedures, many Democrats support a Freedom of Choice Act to limit state-level restrictions on abortion rights. Many Democrats also support a bill expanding civil rights protections for women in the workplace. McCain opposes all of these bills; Obama supports them.Censorship and Indecency
The FCC's post-2003 crackdown on broadcast indecency is generally acknowledged as a concession to the Religious Right; McCain's FCC appointees would likely continue the strict policies, while Obama's likely would not.There are also policy proposals to regulate the content of the Internet and ban anything deemed "indecent" or "harmful to minors" (which would likely be interpreted by judges as comparable to "indecent"). Both bills promoting these restrictions, the Communications Decency Act of 1995 and the Child Online Protection Act of 1998, were signed by President Clinton and struck down by courts. It is not clear that either candidate would support such proposals now, but McCain is under more pressure to do so.
Executive Power and the Post-9/11 World
While every administration since Nixon (with the exception of Carter's) has broadened executive power, the Bush administration has made it an art form following the September 11th attacks by claiming the authority to reinterpret or ignore legislative policies passed to regulate the executive branch.Obama, who taught constitutional law for ten years, has described this as an abuse of presidential power. McCain formerly did, but has recently made statements in support of the Bush administration's interpretation of executive power.
