Next President to Reshape US Supreme Court
Declan's petition to the UN on therapeutic cloning was signed by four scientists on Thursday – the largest number of signatories in one day since 18 March – and four on Friday. Nonetheless, I believe that the vast majority of emails that I send to scientists and academics inviting them to sign the petition are still being dumped to spam boxes (or to cyberspace, see blog of 4 September "Obama: Yes to stem cells, funding"). In fact, between Thursday and Friday I emailed a total of 323 scientists and academics, and received only 11 out-of-office autoreplies. Three examples: (a) 24 emails to the Randall Division of Cell & Molecular Biophysics at King's College London yielded zero autoreplies – and zero signatories; (b) 71 emails to the
International Brain Barriers Society yielded one autoreply – and one signatory; and (c) 26 emails to the Centre for Neuroscience Research at the University of Edinburgh yielded one autoreply – and again only one signatory. Are the emails I send being sent to spam (where they may still be accessed) or to cyberspace? Well, on Friday I sent some bogus emails together with the genuine ones – for example, I added an extra “k” to “@imperial.ac.uk” – but none came back as “Undelivered Mail”.
It is also increasingly difficult to book computers at our local council's Idea Store Whitechapel library because for many weeks now half the computers have been down: floor 1 has 24 computers but only nine are currently available for booking; floors 2, 3, and 4 only have a few computers and half of them are down. Yesterday, for the first time in almost two years, the only available computer for today was on floor 4, in the cafeteria – and when I checked the state of play for tomorrow, the computer I usually book was already taken. So this afternoon I had no choice but to go to a local internet café where we get seven hours for £3 – money we frequently don't have (see blog of 16 August “Letter to the European Court of Human Rights”). 
“Last year, the US Supreme Court voted in a 5-4 decision to uphold a federal ban on late term abortions, regardless of the health of the mother,” writes Daphne Eviatar for the Washington Independent in an article titled “Next President to Reshape Court”. The decision not only signaled a significant shift in the court's approach to the controversial abortion issue, but revealed just how important the composition of the Supreme Court can be – and the extraordinary power the next president will have to control that.
The last time the court visited the abortion question, in 2000, it had struck down an almost identical Nebraska law – in part, because it didn't account for the woman's health. “Nothing had changed between then and the court's 2007 ruling,” writes Eviatar. “Except, that is, the composition of the court.” In 2005, Justice Sandra Day O'Connor, who had consistently upheld the right to privacy that protected abortion ever since Roe v Wade, retired. President George W Bush had since appointed John Roberts as chief justice and Samuel Alito as associate justice.
Republican presidential candidate John McCain has said repeatedly that if he's the next president, he'll appoint more justices like Roberts and Alito. “John McCain’s appointment of the next justice could be the most significant appointment in half a century,” said David Cole, a law professor at Georgetown University, noting that the trend has been toward appointing younger justices who could be on the court for 30 or 40 years. “We would have a solid far-right conservative block for the next several decades. That cannot be undone by a subsequent election if people decide that the court is far to the right of them. There’s nothing we can do as citizens.”
In a New York Times article dated 23 September 2007 Jeffrey Rosen, a law professor at George Washington University, wrote: “Justice [John Paul] Stevens, the oldest and arguably most liberal justice, now finds himself the leader of the opposition.” Stevens, however, is an improbable liberal icon. “I don’t think of myself as a liberal at all,” he told Rosen during an interview in his chambers, laughing and shaking his head. “I think as part of my general politics, I’m pretty darn conservative.” Stevens said that his views haven’t changed since 1975, when as a moderate Republican he was appointed by President Gerald Ford to the Supreme Court. Stevens’s judicial hero is Potter Stewart, the Republican centrist, whom Stevens has said he admires more than all of the other justices with whom he has served. He considers himself a “judicial conservative”, he said, and only appears liberal today because he has been surrounded by increasingly conservative colleagues. “Including myself,” he said, “every judge who’s been appointed to the court since Lewis Powell” – nominated by Richard Nixon in 1971 – “has been more conservative than his or her predecessor. Except maybe Justice [Ruth Bader] Ginsburg. That’s bound to have an effect on the court.”
In her dissent in last year's abortion case, Justice Ginsburg called the decision “alarming”. She wrote: “It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between pre-viability and post-viability abortions. And, for the first time since Roe, the court blesses a prohibition with no exception safeguarding a woman's health.”
“A President McCain will likely have a much greater opportunity to move the Supreme Court than would a President Obama,” said Doug Kendall, president of the Constitutional Accountability Center, a legal watchdog group in Washington. “Simply because it is actually likely that the justices that retire during the next presidency will be the court's more liberal justices. So a conservative president could move the court sharply to the right, while a progressive president will most likely be replacing existing progressive justices.” (If Obama had the opportunity to make an appointment, it would be only the fourth nomination from a Democratic president in more than 40 years.)
At 88, Stevens is widely expected to retire within the next few years. Others have speculated that Ginsberg, 75, or even David Souter, who has admitted he’s considered resigning, could depart as well. “McCain could finally achieve what conservative legal activists have been looking for decades,” said Kendall, “which is a truly conservative, if not reactionary, Supreme Court.” Eviatar: “Because so many of the court’s recent rulings have been decided by a narrow 5-4 majority, the change in just one justice could yield a fundamental change in the enforcement of civil rights, the ability of the federal government to regulate safety and the environment, the breadth of executive power and the reach of habeas corpus.”
What the Republican Party’s conservative base cares about is the Supreme Court, said Barry Friedman, a law professor at New York University. “Issues like reproductive rights, religion in schools, religion in public life. A lot of what they care about they can’t do any other way,” he said. “If the Supreme Court solidifies into a conservative institution there will be a much more concerted effort by litigants and sympathetic state and local officials to frame cases that bring those issues to the court’s attention,” said Kendall. So, in addition to two sections – “Science and Religion” (see blog of 16 September “Royal Society's stance on religion under fire”) and “Science and the Law” (see blog of 28 September “New Scientist: Their Will Be Done”) – our campaign in support of human embryonic stem cell research and therapeutic cloning will also have a final section called “Religion in Public Life”.
