High-stakes courts

Recent landmark court decisions are reminders that elections are not just about putting candidates in office for a few years.

The judges that elected officials put on the bench can remake the legal landscape, change fundamental social policies and even affect the way wars are fought, long after those who appointed them have served their terms and passed from the scene.

The Supreme Court recently created a new “right” out of thin air for captured enemy soldiers and terrorists — the right to seek release in the federal courts, something that neither the Constitution nor the Geneva Convention provided.

The High Court has also struck down gun control laws as violations of the Second Amendment. Whatever the legal merits or the policy merits of that decision, it is a major change, created by judges.

The point here is that federal judges, including Supreme Court justices, wield enormous — and growing — power. What that means is that when we vote for the candidates who will nominate and confirm judges, we are making decisions not only for ourselves but for generations yet unborn.

Recent momentous decisions of the U.S. Supreme Court have been decided by 5 to 4 votes, including the votes of justices appointed by presidents who are no longer living — Justice John Paul Stevens, appointed by President Ford, and Justice Anthony Kennedy, appointed by President Reagan.

Whoever is elected to the White House this November is expected to appoint two or three new members of the Supreme Court — justices who will be making major decisions affecting the future of American society, long after that president is gone.

Your children will be living during the lifetime tenure of those justices, and your grandchildren will be living in a world shaped by the precedents that those justices set.

In a year when dissatisfaction has been expressed by both Democrats and Republicans with the presidential candidates chosen by their own parties, it is worth keeping in mind the high stakes involved in judicial appointments — and therefore in presidential elections.

This is especially important to be kept in mind by voters who are thinking of venting their frustrations by voting for some third-party candidate that they know has no chance of being elected.

There will be a president chosen this November, and he will appoint Supreme Court justices during his term, regardless of whether you stay home or go to the polls.

His choices for the High Court will have a major impact on history, whether you vote after a sober consideration of many facts or vote on the basis of the candidate’s rhetoric, style or demographics.

Even more important than the particular issues that courts will decide is the more fundamental issue of what a judge’s role is in our system of Constitutional government.

In the gun control decision, for example, there were justices who read the history and meaning of the Second Amendment differently. What was most dangerous, however, was Justice Stephen Breyer’s opinion that it was up to judges to weigh and “balance” the pros and cons of gun control laws.

If we have Constitutional rights only when judges like the end results, we may as well not have a Constitution.

Is the right to free speech to be put aside, and a journalist put behind bars, whenever a judge thinks that journalist went “too far” in expressing an opinion about some politician or bureaucrat?

Is someone to be tried over again for the same crime, even after having been acquitted, if judges regard the Constitutional ban on double jeopardy as just a suggestion to be weighed and “balanced?”

We have already seen what happens when a 5 to 4 majority decides that politicians can seize your home and give it to somebody else, if judges don’t think your property rights “balance” whatever politicians choose to call “the public interest.”

When deciding which candidate you want in the White House for the next 4 years, it is worth considering what kind of judges you want on the federal courts for the next generation.

[Thomas Sowell is a senior fellow at the Hoover Institution, Stanford University, Stanford, CA 94305. His website is www.tsowell.com.] COPYRIGHT 2008 CREATORS SYNDICATE, INC.