Lithwick on the Supreme Court: A User’s Guide

This week, the U.S. Supreme Court will hand down its final opinions for the term, and after that happens, nobody will think much about the big nine justices again until next June. But the composition of the Supreme Court is one of the most important issues in November's election, and while the court cannot bring down gas prices or bring home the troops, its decisions in the coming years will affect just about everything else: your privacy, reproductive, speech and religious rights, and your occupational and environmental protections.

It's easy to convince yourself that the composition of the court is irrelevant because its work is too complicated to comprehend or too attenuated to affect your life. But the next president could get the chance to appoint as many as three justices—the constitutional equivalent of a straight flush. Herein, a user's guide to the Supreme Court for you to tear out and take to the voting booth.

The job description. Since Marbury v. Madison in 1803, the justices have had the power of "judicial review," which means (at least in theory) that the court can strike down any law it deems unconstitutional. Though it may sound somewhat divine and undemocratic, unelected justices have the power to throw out a law even if it is (a) popular and (b) properly passed by a legislature. Why? Because sometimes properly elected legislatures pass popular but unconstitutional laws. Not everyone currently on the bench, though, believes the court should use this power very often. According to some of the court's more conservative jurists, judges should refrain from second-guessing other branches of government in matters of national security, employment discrimination, separation of church and state, free speech, the environment and election law. That doesn't leave much for the high court—basically, admiralty law and who gets to sit in the front seat when someone yells "shotgun."

The justices. Anybody who believes the current Supreme Court looks like America needs to take a few more trips on a Greyhound bus. All the judges are white and/or old; most are both. Justice John Paul Stevens is 88 and Ruth Bader Ginsburg is 75. David Souter is 68, and it's widely rumored in legal circles that he wants out. All three voted against the proposition that the government can call you an enemy combatant based on your last name or your area code, then hold you without charges for six years at Guantánamo Bay on the promise that you are either a bad guy, or will become one after six years of being held without charges at Guantánamo Bay. If even one of these three justices were to retire, we could easily return to a world in which decisions about who is or isn't an enemy combatant are made with roughly the same sophistication that seventh-grade girls use to decide who's popular.

The candidates. Presidential hopeful John McCain sees the entire judiciary as a punching bag, regularly blasting "judicial activists" who "abuse" the courts, evidently through their annoying habit of deciding cases in ways he dislikes. Barack Obama seeks jurists with "the heart, the empathy, to recognize what it's like to be a young teenage mom." If both sides sound like they are talking in code about the possibility of reversing Roe v. Wade, that's because they are. But as important as the abortion issue is, it's only a small part of how a new court might mean a new America. In sum, McCain wishes to appoint legal eunuchs; Obama wants someone who's heard of Ashlee Simpson.

The stakes. Very high. The conventional wisdom that the Supreme Court is precariously balanced on a knife's edge—with four liberals and four conservatives battling for the heart and mind of swing Justice Anthony Kennedy—is too simplistic. The current term has seen enough unanimous and near-unanimous decisions to suggest that the story of a 5-4 court is dramatic but inaccurate. That said, it's clear there are four justices on the bench who deeply mistrust the judiciary, in the manner of a Rockette who doesn't care for dancing. Dissenting in this month's habeas case, Justice Antonin Scalia predicted that judicial overreaching "will almost certainly cause more Americans to be killed." John Roberts added that "unelected, politically unaccountable judges" should not shape detention policy. One more jurist at the high court who generally believes that jurists cannot be trusted would spell the difference between a court that is a coequal branch of government and one that cheers from the bleachers.

At the heart of the high court's biggest debates to come—questions about the scope of privacy, safety and claims of presidential secrecy and power—is a deeper question about the role of courts in this country. So when you go to the voting booth on Nov. 4, don't merely think in terms of which candidate will appoint judges who are "good for women" or "good for property rights." That's half the story. For eight years the Bush administration has treated the courts almost like an enemy: meddlers and elitists who cannot understand what it means to be at war. And as a consequence, we find ourselves in a country where the rule of law is an occasional luxury, like heated seats. As you contemplate what you want the next Supreme Court to look like, ask yourself what happens when judges are sidelined—or when they're chosen for their inclination to sideline themselves. If we really want to restore the rule of law in America, then we'd better vote for a president who believes that we call it the Supreme Court for a reason.