Next U.S. president will appoint at least one Supreme Court judge

By Shannon Johnson

October 20, 2008 | On Nov. 4, Americans will step into voting booths and choose a national leader who will influence politics and laws.

Most don't consider the power he has over the courts. As you take the tiny eraser-less pencils and fill in the bubble next to the candidate, most will vote on the economy, who has the better hair, or a better defense policy, but your choice can make a big difference in the future of the Supreme Court and why that appointment matters.

When voting for President Gerald R. Ford the voters probably thought about his policies. These days his party platform is tough to recall, but his appointment of Justice Stevens is still influencing policy today. Ford's presidency played a role in decisions like Roe v. Wade, the famous abortion case, and dozens of other court rulings since 1975, a 33-year span.

Considering the amount of time that a justice can remain on the court combined with the power of the Supreme Court, a presidential appointment is one of the most important choices that they can make.

Justice Stevens is 88 years old, and within the next presidential term he will enter his 10th decade on the planet. One of the most likely candidates to retire, whoever occupies the executive branch after the next election will be able to decide the direction of the court.

Currently a 5-4 balance exist between conservatives and liberals on the court with Justice Kennedy as the typical swing vote. In this country, nine non-elected officials can control what laws should or should not be enforced; they even have the power over the popularly elected law-making body. Sounds like an aristocracy, but it is the situation on the true blue soils of the U.S. of A. When the Supreme Court's opinions establish precedents enforced by lower courts, their statements carry the same weight as law.

Which is why one should be cautious when judges are engaging in legislating from the bench or as it is sometimes called judicial activism. Essentially judicial activism is when judges can't find provisions in written law that can be applied to a court case that they are considering. So judges will draw their own conclusion, making decisions often based on the "idea behind the Constitution or the laws." The danger is that a law is being made, and enforced by lower judges, when no one voted on the laws or can vote that judge out.

The people are taken out of the law-making process, and in spite of the best intentions of the court, judicial activism undermines the very idea of a democratic system. Many shy away from being overly critical of judicial activism, because criticizing them would involve criticizing some of the rights positive changes that they have made over the years. Cases like Brown v. Board of Education, the case that led to the integration of the South, and Social Security programs, are all byproducts of judicial activism.

Thus, when the court often seems to resonate with what is moral and right in the eyes of society how can one be critical of that policy?

Primarily because the precedent established is a dangerous one.

A perfect example of judicial activism is the recent, controversial decision in Boumediene v. Bush, the Guantanamo detainee case decided last year. It rings true with the American ideal and the court appears to take the moral high road by extending the prisoners' Constitutional rights.

Because of the moral overtones of the case, it is difficult to overtly criticize the outcome this case holds for future generations. Five people being held at Guantanamo filed suit in the DC courts requesting a trial what is commonly called the writ of habeas corpus. Meanwhile, Congress passed a law stripping courts of jurisdiction over the detainees and establishing a military court to prosecute them in.

In spite of the limitation of the Court's power, the Supreme Court still accepts cases and ruled that those detained should receive Constitutional rights.

Two major problem with this idea is that we are granting rights that have previously only applied to US citizens to people who have never lived in or been citizens of the United States. The reasoning here is that because we have been in control of the bay that is an extension of the United States and thus an extension of the government's power.

This same thing happened in World War II with German prisoners being held on US occupied territory. These soldiers also filed suit and when their case reached the Supreme Court it drew the opposite conclusion. In fact in this case, Johnson v. Eisentrager, Justice Jackson as Justice Scalia cites in his dissent stated that: "'no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.'"

When the Supreme Court ignores precedent and the Constitution in favor of judicial thought, then judges have become legislatures.

But this is not the only problem with this precedent, whatis it that civilian courts would be better suited to try these prisoners in then the courts established by Congress for this purpose. If they were to be tried in a civilian court what charges could be brought against them? Terrorism is not a crime under U.S. law but under international and military law it may be.

Primarily the distressing aspect here is the precedent in the long term, if the U.S. need only have control over the base in order to ensure that those prisoners are entitled to the provisions of the Constitution then any military prison will call for U.S. courts and trials.

So when you step into the frail plastic booth on election day and cast your vote, remember to choose a leader who will wisely choose judges that represent your views.

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