The Courts.

• Author: Mencimer, Stephanie
• Position: THE STAKES 2008

There are few areas of public policy where the impact of the presidential election will be quite as stark as the makeup of the U.S. Supreme Court. The next president could potentially appoint two or three new justices in a single term, giving the winning candidate the opportunity to radically reshape the Court for a generation to come.

The Court's most liberal member, John Paul Stevens, is eighty-eight years old and likely the first to retire. Ruth Bader Ginsburg, another liberal, is seventy-five years old and reportedly would like to step down. They may be joined by David Souter, the sixty-nine-year-old Republican appointee who frequently votes with the liberal bloc. But regardless of who wins the White House, the Court will probably get more conservative. Stevens is a judge from another era, and it's unlikely that someone with his beatings would survive Senate confirmation today. So his replacement, even if chosen by a Democrat, is likely to be to his fight. The question will be just how far and on what issues.

Even today, one still encounters the lingering perception that John McCain is secretly more liberal than he appears, and is only bandying about talk of judicial activism to mollify the religious fight. It's true that McCain's relationship with that wing of the party is not a cozy one, but it's equally true that McCain is a genuine conservative. He has never voted against a GOP Supreme Court nominee, including Robert Bork (opposed by seven maverick Republican senators) and Clarence Thomas (rejected by two). He has voted 159 times to support George W. Bush's judicial nominees. As Sarah Blustain recently noted in the New Republic, McCain has voted on 130 reproductive rights measures during his Senate career, and has sided with anti-abortionists for 125 of them. McCain said in February last year, "I do not support Rove v. Wade. It should be overturned."

While the contrast between Barack Obama and McCain on hot-button social issues couldn't be clearer, to focus exclusively on abortion or separation of church and state is ultimately distracting. The Supreme Court hasn't heard a great deal of these cases lately, and this pattern is likely to continue for the near future. The areas where McCain may have the biggest influence include the growing number of business cases on the docket (in which McCain's choice of judges would surely share his own ardent belief in deregulation) and questions of presidential power.

John McCain's Court, in...