John McCain: Dog whistling past the Supreme Court
Jeffrey Toobin has an important piece in this week's New Yorker about John McCain and the Supreme Court.
While we were all parsing the primaries, McCain gave a very revealing speech at Wake Forest University. The Republican presidential candidate alleged that "activist" federal judges are subverting the will state legislatures by ruling issues that should never have come before the judicial branch.
Toobin heard the dog whistle in McCain's allusions:
Instead, [McCain] pronounced that the great exception “is the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges.” This, of course, is a view functionally identical to President Bush’s often expressed contempt for judges who “legislate from the bench.” McCain then cited what he saw as an example of such abuse. “Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the state of Missouri,” he said. “As you might recall, 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,’ and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning.” (Emphasis added.) [NYM]
Toobin notes that the case of "aggravated murder" in Missouri is Roper v. Simmons, which concerns the appropriate punishment for felons who commit capital murder as teens. By citing this ruling, McCain is implying that the Supreme Court's 2005 ban on the execution of juveniles is an abuse of the power of the federal judiciary. (Mocking discussions of international law and foreign constitutions was a nice little demagogic flourish, I must say.)
McCain says that talk of penumbras and emanations is a poor substitute for constitutional reasoning. Translation: There is no constitutional right to privacy.
Nor were his references to penumbras and emanations accidental. Those words come from Justice William O. Douglas’s 1965 opinion for the Court in Griswold v. Connecticut, in which the Justices recognized for the first time a constitutional right to privacy, and ruled that a state could not deny married couples access to birth control. The “meaning of life” was a specific reference, too. It comes from the Court’s 1992 opinion in Planned Parenthood v. Casey, which reaffirmed the central holding of Roe v. Wade, and forbade the states from banning abortion. In short, this one passage in McCain’s speech amounted to a dog whistle for the right—an implicit promise that he will appoint Justices who will eliminate the right to privacy, permit states to ban abortion, and allow the execution of teen-agers. [NYM]
Toobin thinks McCain is trying to pander to extreme conservatives without having to take any unpopular stands on choice, privacy, or other hot button issues that might spoil his appeal for moderates. I'm inclined to agree. In fact, I wonder whether McCain understands what he's saying.
It's weird that McCain's foremost example of judicial overreach is a capital punishment case. On what planet is the Roper decision an abuse of judicial power? The US Constitution proscribes cruel and unusual punishment. Missouri wanted to execute teenagers. Some people thought that was cruel and unusual. So, they took their case to the Supreme Court and they won. The Court looked at the law and the constitution and found that the former was incompatible with the latter. Who does McCain think should decide what constitutes cruel and unusual punishment? Well, the legislature can't decide for itself whether the laws it passes are constitutional.
Is McCain recommending that the Unitary Executive take on full responsibility for determining what constitutes cruel and unusual punishment? It would be absurd to suggest that state legislatures get to decide for themselves whether the laws they pass are constitutional. If the Supreme Court doesn't have the authority to make these calls, that leaves the president as the final interpreter of the Constitution. Either McCain is out to lunch, or he's advocating a theory of executive power that's more extreme than anything Bush dreamed of.
It takes a real maverick to call for the abolition of the Supreme Court.
[Full text of McCain's remarks here. HT: Eric.]