Legal News

Toobin on McCain: When it Comes to the Court, He?ll Not be a Maverick

By Dan Slater

A couple weeks ago, when we wrote about John McCain’s Wake Forest speech on judges, we thought that the speech, though a bit vague, seemed to be a clear embrace of state’s rights and a jurisprudence of restraint. The New Yorker’s Jeffrey Toobin, writing in this week’s “Talk of the Town,” is a bit more pointed: “McCain plans to continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court.”

Toobin, who writes that the the Bush Administration “has sought to expand executive power in an unprecedented manner” — especially with respect to authorizing torture, ignoring the Geneva conventions, and ordering the surveillance of citizens — chides McCain for blaming the abuse of the federal courts on the judges themselves, who “have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges.”

Toobin quotes McCain at length on Roper v. Simmons, a case in which the Court overturned the juvenile death sentence for a 17 year-old convicted of murder. “As you might recall,” said McCain, “the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and ‘evolving standards of decency.’ These meditations were in the tradition of ‘penumbras,’ ‘emanations,’” — referring to the right of privacy established in Griswold — “and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning.”

Might he really be a “maverick” when it comes to the Supreme Court? Toobin asks. Almost certainly, the answer is no. McCain is likely to continue in the tradition of Bush’s conservative appointees — “a phalanx that is more radical than any that the Court has seen since F.D.R.’s appointments.” With John Paul Stevens, Ruth Bader Ginsburg and David Souter not long for retirement, writes Toobin, one unmistakable truth emerged from McCain’s speech: “that the stakes in the election, for the Supreme Court and all who live by its rulings, are very, very high.”

Full post as published by Law Blog - WSJ.com on May 19, 2008 (boomark / email).