O futuro da Corte Suprema americana

O Prof. Farlei Martins envia-nos o editorial do jornal "New York Times" de 21 de setembro de 2008 sobre o futuro da Corte Suprema após a eleição presidencial de novembro.

The Candidates and the Court

Among the many issues voters need to consider in this campaign is this vital fact: The next president is likely to appoint several Supreme Court justices. Those choices will determine the future of the law, and of some of Americans' most cherished rights.

John McCain and Barack Obama have made it clear that they would pick very different kinds of justices. The results could be particularly dramatic under Mr. McCain, who is likely to complete President Bush's campaign to make the court an aggressive right-wing force.

Mr. Obama seems likely to pick moderate justices, who would probably not take the court back onto a distinctly liberal path, but also would be unlikely to create an unbreakable conservative bloc.

Mr. McCain has promised the right wing of the Republican Party that he would put only archconservatives on the Supreme Court. Even moderate conservatives like Anthony Kennedy, the court's current swing justice, would not have a chance.

Mr. McCain, whose Web site proclaims his dedication to overturning Roe v. Wade, would appoint justices who could be expected to lead the charge to eliminate the right to abortion. The kinds of justices for whom Mr. McCain has expressed a strong preference would also be likely to undermine the right of habeas corpus, allowing the government to detain people indefinitely without access to lawyers or family members.

Mr. McCain's justices are likely to join the conservative crusade against the power of Congress. They could be expected to strike down, or sharply limit, federal power to protect clean air and water; ensure food and drug safety; safeguard workers; and prohibit discrimination against women and minorities. They would also likely further erode the separation between church and state.

Mr. McCain has voted to confirm federal judges chosen by Mr. Bush who are radicals, not conservatives. One, Janice Rogers Brown, now on the United States Court of Appeals for the District of Columbia Circuit, has attacked Supreme Court decisions upholding New Deal laws as "the triumph of our own socialist revolution."

Mr. Obama, a former professor of constitutional law, has clashed with Mr. McCain in the Senate over legal issues. Mr. McCain backed the odious Military Commissions Act of 2006, which the Supreme Court held to violate the right of habeas corpus; Mr. Obama opposed it. Mr. McCain was a rubber stamp for Mr. Bush's judicial nominees; Mr. Obama voted against the worst.

Mr. Obama has said he wants justices who have "the empathy to recognize what it's like to be a young teenage mom" - as well as to be gay, poor or black. He has promised to make "preserving women's rights under Roe v. Wade a priority as president."

At the same time, Mr. Obama has put distance between himself and legal liberals on issues like the death penalty for child rapists and the constitutionality of gun control. As president, Mr. Obama would probably be more inclined to appoint centrist liberals, like Justice Stephen Breyer, than all-out liberals, like William Brennan or Thurgood Marshall.

Predicting vacancies on the court is difficult. But odds are that members of the liberal bloc, like 88-year-old John Paul Stevens, will leave first. That means that if Mr. Obama is elected, he might merely keep the court on its current moderately conservative course. Under Mr. McCain, if a liberal justice or two or three steps down, we may see a very different America.