By Benjamin Grosz '11
Contributor

The outcome of the coming election could have a profound impact on the federal courts. Professor Herman Schwartz of American University’s Washington College of Law visited the Law School last week to share his forecast with a room full of interested students. Schwartz is a constitutional law scholar with a special interest in the shaping of federal courts and author of two books on conservative efforts to influence the courts. The Law School’s chapter of the American Constitution Society (ACS) sponsored the event to allow Schwartz to share his “expertise on the way in which judicial appointments affect the development of constitutional law,” said Beth Cochran, the chapter President.

Schwartz argued that a John McCain win would have a dramatic impact on the Supreme Court’s composition and rulings, and he outlined key areas where he predicted law would change. A Barack Obama victory would have a less dramatic impact, Schwartz asserted, in that it would merely keep the Court from a hard move to the right.

Schwartz predicts that three liberal justices might step down from the Court in the next four years: John Paul Stevens, Ruth Bader Ginsburg, and David Souter. Stevens is already one of the oldest Justices in history at 88, Ginsburg is 75 and has had cancer, and Souter “hates” living in Washington, D.C. Schwartz believes that at least one of these Justices will leave the Court during the next Presidential administration.

Since McCain would appoint Justices in the Alito and Roberts mold, Schwartz argues that many of the 5-4 and 6-3 liberal decisions of the past twenty years would be at risk of being overturned. Areas of law that he believes would be likely to change significantly under this scenario include abortion, separation of church and state, national security, election law, and gay rights.

With McCain appointments, Schwartz foresees the Court possibly overturning Roe v. Wade, but more likely dramatically limiting abortion rights by interpreting them as a “liberty interest,” which would allow states to outlaw all abortions except those that pose a severe threat to the mother’s life. In the area of church and state, he anticipates that public displays of religious objects and official school prayer could become legal, and he expects that there would be a “heavy infusion of [public] money into parochial schools,” something former Justice Sandra O’Connor strongly opposed but which the current Court, or future justices appointed by McCain, might permit.

In the area of national security, Schwartz highlighted several recent narrow decisions affirming the rights of military detainees that could be overturned or narrowed by the Court if McCain is elected. These include Rasul v. Bush (applying American law to Guantanamo prisoners), Hamdan v. Rumsfeld (military commissions must follow the Geneva Convention and the Uniform Code of Military Justice), and Boumediene v. Bush (granting Guantanamo detainees the right to habeas corpus). On these and many other close decisions, Justice Kennedy has been a pivotal vote recently, but Schwartz asserts that if McCain wins, Kennedy would become less relevant as there would be a solid conservative bloc.

Judicial involvement in election law conflict is another area that could be greatly affected. Schwartz describes the Court as split 4-4 today, with Kennedy waffling. If McCain wins, he expects that the Court will withdraw from any involvement in election issues and that gerrymandering will be “the way of life,” with House incumbents re-elected with greater than 90% frequency for years to come.

Finally, Schwartz touched on “gay issues on the horizon,” noting specifically that adoption rights would likely come before the Court and that they would be much less likely to be recognized by a Court with McCain appointees.

An Obama victory would not dramatically alter the Court according to Schwartz, although he did predict that if Obama wins the Democratic Congress would pass a “Judges Bill” to expand the Federal Judiciary and add more Judges for Obama to appoint at the lower court levels, since nearly all of the courts are tilted to the conservative side today. Schwartz did speculate that if Obama won in a blowout, Justice Kennedy or Justice Alito might be swayed by the popular mood to temper their judicial interpretations.

Schwartz provided a great deal of historical perspective throughout the presentation. He noted that the personal attacks in this year’s presidential campaign have actually been “very tame” by historical standards, especially compared to the “scurrilous charges” that were rampant during the Election of 1800. Schwartz also offered some of his personal views on subjects ranging from what the founding fathers did wrong (they “made a mistake” by giving judges life tenure) to commenting on the personalities of current Supreme Court Justices (Justice Kennedy is “very conservative” and “brutal on racial minority rights;” Chief Justice Roberts is the “smoothest, slickest article around” and “will not” change his views).

Finally, asked by students to forecast who might be nominated to the Supreme Court by a McCain or Obama administration, Schwartz predicted that the next appointee will “almost certainly be a woman” and “very probably a woman of color.” Although he argued that it is a “terrible mistake” to assume that federal appellate courts are the right place to look for Supreme Court nominations, Schwartz did offer the name of Judge Sonia Sotomayor, from the United States Court of Appeals for the Second Circuit, as a possible Obama appointee.