Author: Supreme Court will be an issue in presidential race

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The U.S. Supreme Court is going to become a more visible issue in the 2008 presidential election.

This was the prediction of journalist/lawyer/author Jeffrey Toobin, who spoke at the State Bar of Wisconsin annual convention earlier this month in Madison.

Toobin, a staff writer at The New Yorker and senior legal analyst for CNN, discussed his new book, “The Nine: Inside the Secret World of the Supreme Court.” The book gives a behind-the-scenes look at the workings of the highest court in the land for the past 25 years, including – like it or not – the personalities and political struggles that have played a role in Constitutional jurisprudence.

Toobin told the sizable group of lawyers and judges in attendance: “It now looks like we have two [presidential] candidates, and I think we’re going to start to hear more about the Supreme Court. The curious thing is that everyone knows in a kind of general way that the court is very important. But they tend to know very little about the court itself, and what it does, and they tend to know even less about the justices themselves.”

He reminded that the court now is made up of four conservatives – Chief Justice John Roberts, and Justices Samuel Alito, Clarence Thomas and Antonin Scalia – and four liberals – Justices Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens and David Souter. In the middle is Justice Anthony Kennedy, who more often sides with the conservatives.

The next president, said Toobin, will likely fill three vacancies on the court in the next three years: Stevens, Ginsburg and Souter.

Toobin went on to outline the role of politics and presidential agendas on the Supreme Court during the past 50 years. (See accompanying story)

The Supreme Court hasn’t been that big of an issue – so far – because the vast majority of Americans is in the middle; they don’t strongly support or oppose Roe v. Wade. But the very vocal minorities in either direction are likely to draw more attention to the high court very soon.

Toobin hearkened back to a presidential debate from 2004, in which President George W. Bush identified the Dred Scott decision as an example of the Supreme Court getting it wrong occasionally.

“That comment by President Bush was what’s known as a ‘dog whistle,’ because to movement conservatives, Dred Scott is a code word for Roe v. Wade. It’s a symbol of everything the Supreme Court does wrong… That’s why President Bush said Dred Scott, and not Roe v. Wade, because most Americans actually support Roe v. Wade.”

On May 6, John McCain, the presumptive Republican presidential nominee, gave a speech about the Supreme Court. It was the same day as the Indiana and North Carolina Democratic primaries. That wasn’t by accident, said Toobin. McCain wanted to address the Republican base only, and knew that the undecided voters would be following the primaries instead.

There’s no mention of Roe v. Wade, but his speech is all about it nonetheless, commented Toobin, because McCain decried “judicial activism” in it – another code word for Roe. McCain additionally criticized the use of international law in constitutional jurisprudence, yet he never identified any case by name. It was a jab at Kennedy; yet the decision itself, Roper v. Simmons, which struck the death penalty for juveniles, was not unpopular with the American people.

Toobin predicted, “I’m sure [in the upcoming presidential debates], we’re going to see McCain talking in these kinds of generalities about ‘judicial activism’ and ‘legislating from the bench,’ whereas Sen. [Barack] Obama is going to talk about protecting diversity and a woman’s right to choose.”