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Will the Election Tip the Court’s Balance?

THINK TANK

WITH HOST: BEN WATTENBERG

SATURDAY, OCTOBER 21, 2000

ANNOUNCER: Funding for Think Tank is provided by the John M. Olin Foundation, the Lynde and Harry Bradley Foundation, the Smith Richardson Foundation, and the Donner Canadian Foundation.

(Musical break.)

MR. WATTENBERG: Hello, I'm Ben Wattenberg. When Americans elect a new president this fall they could also influence the direction of the Supreme Court, and American law for decades to come. Age and health issues suggest that Al Gore or George W. Bush could name as many as three new justices in the next four years. What does the 2000 election actually mean to the future of the Supreme Court, what are the most important issues? To find out, Think Tank is joined by: Walter Delinger, Duke law professor, and former Solicitor General under President Clinton; and C. Boyden Gray, former White House counsel under President George Bush, and partner at the law firm of Wilmer, Cutler, and Pickering. The topic before the house, the court in the balance, this week on Think Tank.

(Musical break.)

VICE PRESIDENT GORE (From video): You know, this is a very important issue, because a lot of young women in this country take the right for granted, and it could be lost. It is on the ballot in this election, make no mistake about it.

GOVERNOR BUSH (From video): I'll tell you what kind of judges he'll put on there, he'll put liberal, activist judges who will use their bench to subvert the legislature. That's what he'll do.

VICE PRESIDENT GORE (From video): That's not right.

MR. WATTENBERG: Many are saying that no issue is more vital in the race between Al Gore and George W. Bush than the make up of the next Supreme Court. Six years have passed since the last court vacancy; that is the longest gap without a change in 177 years. Whatever one may think on other issues, there is a real difference between the candidates and the parties on this one. Just one change in the Supreme Court's membership could affect decisions on a number of key issues, abortion, affirmative action, civil rights, federal power, and the separation of church and state. Many of these contentious issues have been decided by five to four votes. The two candidates' role models for the jobs offer starkly different views of the court's future. Bush's favorites are current conservative justices Antonin Scalia, and Clarence Thomas. Gore's are the late liberals Thurgood Marshall and William Brennan.

Gentlemen, thank you for joining us. Let's set the lay of the land first. We talked about five to four decisions and liberals, and conservatives, Walter, and then Boyden, why don't you just tell our viewers where we are in this process, how the court is now balanced.

MR. DELINGER: This is a court that is balanced on many issues in a way that, at least in retrospect, seems predictable, when you look back at the decisions. The court has split five to four in a number of areas, for example, abortion rights, and the power of the national government compared with that of the states, with the court often breaking down --

MR. WATTENBERG: But, in different directions on those two. So the five to four pro-choice, and five to four in favor of reducing federal power?

MR. DELINGER: That's correct. I think that generally speaking Chief Justice Rehnquist, Justice Scalia, Justice Thomas, and Justice Kennedy have strongly supported state's rights, and have limited the power of the national government to deal with a number of issues, often joined by Justice O'Connor, a former state senator from the State of Arizona before she came on the court. On issues like abortion rights, the group that has generally found a constitutional right to be free of government restraints on reproductive choices, Justice Stevens, Justice Souter, Justice Briar, and Justice Ginsberg, often they are joined by Justice O'Connor. So you have a court that has been fairly closely divided on these issues.

MR. WATTENBERG: Does that sound about right, Boyden?

MR. GRAY: I think I agree with that. I think the abortion issue has been the one most discussed in the press. I think it's not the most important issue that would be resolved over the course of the next 10 or 20 years. I think Roe v. Wade is pretty solid. I do think partial birth abortions come back, but I don't know that abortion should be considered --

MR. WATTENBERG: Why do you say Roe v. Wade is pretty solid, if there are a potential three new justices, and you've had five to four votes? I mean, if one of the liberals, I guess Justice Stevens is 80, who has been pro-choice, if he is replaced wouldn't that go five to four the other way?

MR. GRAY: I just don't know that Roe v. Wade itself is going to get revisited that quickly. I do think there are issues around the edge of it, parental notification, and partial birth, a whole bunch of peripherals, now they're pretty important, but not the central issue itself. I think that's where the abortion issue is going to play out. And my point was, the more important issues facing the court, really, in terms of change, are going to be vouchers, affirmative action, the scope of federal power, the scope of commerce clause, the scope of government. I think those are going to be the issue that really --

MR. DELINGER: Before we leave abortion, because I think on some of these other issues Boyden and I are actually in agreement, let me say the one issue I would say as we go on in our conversation, and I think it's often very hard to predict what's going to happen on the court, one thing about the abortion issue, however, is that the dissenting justices who believe the states can regulate abortion, should be allowed to have a much greater way of regulating what women are able to do about this choice, they've made it fairly clear that they, in their dissenting opinions, that they do not accept the legitimacy of what the majority has been doing in protecting abortion rights.

For a particular woman facing a pregnancy which raises issue for her about whether she wants to continue this pregnancy or not, the fact that other women have reproductive choice is not very comforting. And I think what you will see is, for example, the kinds of restrictions that make abortion very difficult for the most vulnerable women, that is those who are hostage to youth, or geography, or poverty, even if Roe versus Wade isn't overruled, for a class of women, particularly those who are young, there are women -- if you think of a 17 year old in Eastern North Carolina who has never been out of the county in which she was born, does not have private transportation, the only available provider is half a state away, something like a waiting period, which should not be an undue burden for a stock broker in a major city means two trips to a strange and distant city, an overnight stay.

I do think, and my wife has worked with young, pregnant adolescents, and finds that often the choice of an abortion gets out of reach at first, they go back to get some more money, and by the time they come back they're in a later stage of development. So I do think there are some real issues there.

MR. WATTENBERG: Let's go on to the issue now of federal power, vis-a-vis the stats. This has sort of been a sleeper, this as I understand it essentially relates to the 10th Amendment, which says that all power not given to the federal government is reserved for the states, for decades, maybe a century, it was sort of ignored, written off as that funny amendment. And all of a sudden, I remember in 1996, Senator Dole started running on that 10th Amendment, made it an issue. Boyden, will you start and sort of enlighten us as to what the issue is. Walter, tell us who the players are?

MR. GRAY: Well, there are really two issues. One is the scope of the commerce clause, under which the federal government can regulate interstate commerce, and how far does that reach into a state. And another is, how much power does the federal government have as part of the 14th Amendment, to regulate social issues, to legislate on social issues to advance the cause of equal protection, if you will.

MR. WATTENBERG: Where does the 10th Amendment come in?

MR. GRAY: The 10th Amendment comes in on the first really more than the second. But, there are still -- the way the court looks at it -- Walter can explicate this I'm sure better, because I think he's argued a couple of these cases. What the court does is ask for a pretty high hurdle now on whether the Congress can begin to impinge on state sovereignty under the 14th Amendment. And there are a couple of cases pending. Indeed, President Bush filed an amicus brief on the side of disability groups in a case that was argued just last week. But these are -- I think they're two separate issues, but they raise the same kind of problem, which is, what is the scope of the power vis-a-vis not just the states, but the public generally, and the country as a whole.

MR. WATTENBERG: Let's hear some examples. You've got a problem with this, I gather, and you sort of support it; is that right?

MR. DELLINGER: Well, I've got half a problem.

MR. WATTENBERG: Okay.

MR. GRAY: I think the commerce clause has been stretched too far.

MR. WATTENBERG: Okay.

MR. DELLINGER: In the last five terms, since 1994, the Supreme Court has invalidated 24 acts of Congress. That's something close to a record case. It's struck down -- and many of these on federalism grounds, some of them on First Amendment grounds, like the Communications Decency Act, but the court has struck down a critical part of the Brady Handgun Control law, the Religious Freedom Restoration Act, the right of people to sue the state for patent and copyright infringement. It may be on the verge of striking down parts of the disability act that allows people with disabilities to sue state and local governments, all in the name of federalism. It struck down a federal law that makes it a crime to possess a gun within 100 feet of a school.

Let me say that some of these decisions are correct. The Lopez decision involving guns in the schools, Congress' theory was that guns in or near schools adversely impacts the quality of the education in the school, and then years later that will have an adverse impact on the national economy. That was the theory, because there was no proof that the gun had any connection to interstate commerce.

It seems to me that that's not clearly wrong.

MR. WATTENBERG: That's a stretch.

MR. DELLINGER: That is right, what Congress did was clearly a stretch, and the court's decision is by no means clearly wrong, because the framers of the Constitution had two intentions. One is that they intended that the national government be able to deal with national problems, and they intended that certain local matters be left to the states. What they didn't anticipate is we would have an overlap, and that local matters because of intercommunications, transportation, local matters would almost always have some rippling effect on the national economy.

So the court has to make a choice, and Lopez is not bad, and they haven't taken away the power of Congress to regulate the national economy. Congress can still regulate economic matters. They can still regulate non-economic matters where there's some actual connection to interstate movement. So, those cases aren't that back.

I want to come to the Civil War Amendments in just a moment, Boyden. You want to say to the commerce clause?

MR. GRAY: No. I think it's --

MR. WATTENBERG: But, Boyden, you tell us --

MR. GRAY: The commerce clause is there in part because we don't want states to burden interstate commerce. We don't want states, as much as we love states' rights on issues involving their police power, involving health and safety, involving morals perhaps, if you will, religion, we don't want states burdening the national economy. This is where you get into the Internet, and privacy, and there are some very, very tricky issues, and who knows how they play. But the government ought to have authority over that, but not to reach in and say that a gun in a school affects the country's economy. It really doesn't. It's just going too far.

MR. WATTENBERG: Okay, so where do you guys disagree?

MR. DELLINGER: We disagree, I think, probably on the most significant decisions of the court, in my view, are those under Section V of the 14th Amendment. This was the Civil War Amendments, they gave the national Congress after the Civil War the authority to protect rights of individuals against their state government. So the right to due process, the right to equal protection. And Congress has, after Reconstruction, used it to pass the first set of civil rights laws, some of which were invalidated by a conservative Supreme Court in the 1780s and 1790s --

MR. WATTENBERG: You mean 1890s.

MR. DELLINGER: 1880s and 1890s.

MR. WATTENBERG: Even I knew that.

MR. DELLINGER: But the victorious Republican Party after the Civil War correctly empowered the national Congress to protect national rights. And Congress is the one institution of government that is mentioned in the 14th Amendment. And this court has taken -- a majority of this court has taken it to itself to make a determination about when Congress can and cannot act when there is a real need.

MR. WATTENBERG: But give us an example, where do you think they've gone too far? You said, while there are 24 overruled, four examples? You, in theory, are a Gore supporter, here's Boyden a Bush supporter. I'm a voter, I have to decide, what do you disagree with that Boyden would agree with?

MR. DELLINGER: I think the Violence Against Women Act, where I do think the Congress passed a federal law giving women who are victims of violence, gender-based violence, the right to sue the attacker in federal court. On the basis of Congress' judgment that the states were not doing an adequate job of providing a remedy. The court held that there was, first, an insufficient connection to Congress. We talked about that. But to me the more striking holding is that Congress did not have the power to decide if the states were failing to provide sufficient protection to women. Congress couldn't say, well, our solution to that is to provide a remedy in federal court. And the court held that that was beyond the power of Congress. Really arrogating to itself the capacity to make judgments that seemed to me to be truly legislative.

This court is presently quite willing to invalidate state laws, local laws, national laws --

MR. WATTENBERG: Which is what they accused the Warren Court of doing.

MR. DELLINGER: Well, I think that issue is --

MR. WATTENBERG: Of making laws.

MR. DELLINGER: It depends on which side, or who is being activist here, you could argue that Congress is being a little hyperactive.

MR. WATTENBERG: But go to the specific case, should the federal government be able to, through a congressional act, which is what conservatives are always saying, if you don't like it, get the Congress to act. Here the Congress acted, they say, to protect women, and you're saying you don't have the right to do that?

MR. GRAY: Well, violence against women is punishable at state law. We don't need to federalize all criminal activity. In fact, we shouldn't. If you do that, you sap the right of the states or the obligation, the duty, the accountability of the state.

MR. WATTENBERG: But this was a law passed by Congress, this is what conservatives always say. You know, stop making judge-made law, let the Congress make law.

MR. GRAY: But the court is saying, hey, you're going too far. We don't need to federalize criminal law enforcement.

MR. WATTENBERG: They're not saying you don't need to, they're saying, you cannot.

MR. GRAY: In this case --

MR. WATTENBERG: Right, I understand.

MR. GRAY: -- you cannot use the 14th Amendment to go after something which doesn't really sound in civil rights, it's more just criminal behavior that is punishable, you know, quite severely at state law.

MR. WATTENBERG: Which it is, violence against women or anybody else is severely punishable, obviously.

MR. DELLINGER: That's right. And the question is whether Congress is to make the legislative judgment that state remedies are inadequate, or whether the court will say, no, we believe state remedies are adequate. It's really not a pro and anti violence against women issue.

MR. GRAY: Walter is taking issue with the fact that they're making these kind of qualitative judgments, I think is what you're saying. And I will say that the court has invalidated 24 acts of Congress. Justice Scalia will come back and say, as I've heard him say, look, just because Congress passes a series, a large number of unconstitutional acts in a row doesn't make our court more -- who is the activist. And the conservatives would argue --

MR. DELLINGER: There's an honest debate there. If you look at the issues we've talked about, Ben, and we think there's a difference on abortion. There's a difference at least in part on depending on how much weight people ought to give to the commerce clause holding. There's still going to be a difference on national power. There is a difference on executive agency power, the Food and Drug Administration, the tobacco case, where the court was narrowly split and by five to four held that the Food and Drug Administration with the approval of the president still did not have the authority to regulate tobacco. You have a court that is -- and may this term even further curb the power of administrative agencies to make law in the environmental protection and health and safety areas. So those are all big areas.

MR. WATTENBERG: Now, just to get back to the election, I assume a Gore court would be more likely to allow federal regulation on the environment, and food and drug, and whatever, to stay under the federal umbrella; and a Bush court would stay somewhat less so; is that accurate? So that's one cutting line.

I want to ask one other thing. Boyden, I know you've talked about it, what would the effect be alternatively of a Bush presidency or a Gore presidency on selection lower court judges? That's a big part of this.

MR. GRAY: I would say in the short-run that may even be the bigger part. I know the premise of this program is that there are going to be three appointments likely in the Supreme Court, but I'm not sure that's true. There's been a long gap between the last change in the court, but the court is collectively fairly young as courts go. And I'm not sure any of them is in a hurry to go anyplace. I think it depends. What you have to look at is an eight-year horizon rather than four.

But in the courts of appeal, there are vacancies that will be filled for sure in short order in the next presidency. And we have a very fine philosophical balance that mirrors the Supreme Court balance. The D.C. Circuit, a very important court for the administrative agencies and the power of the federal government, extremely important, very narrow margin in the Fourth Circuit. And almost every circuit in the country is pivoting off a very, very narrow margin.

MR. WATTENBERG: Bush said in one of the debates that if Gore is elected, he will appoint liberal activists to these kind of judgeships. Do you agree with that?

MR. DELLINGER: I don't necessarily think that's right. I don't. I don't think that's been --

MR. GRAY: But more liberal than President Clinton has perhaps.

MR. DELLINGER: I'm not sure, Boyden. In fact, I think, you know, we've emphasized those areas where we think there is a difference in the orientation of the parties and their adherence in a fairly large way on national power, administrative agencies, abortion. But there are lots of areas where it's really unpredictable. First of all, I think a president can --

MR. WATTENBERG: Boyden Gray pushed Souter, right, when you were White House counsel?

MR. GRAY: I think it's fair to say, we thought Souter would vote differently than he has. And this is one of the dangers, you can't predict exactly how they're going to vote. I can't fault his scholarship.

MR. DELLINGER: He's been a fine justice. The president can't predict beyond a very short time horizon, because he doesn't know what an individual is going to think about an issue that the president can't even foresee. Who knows what lawyers, or judges, or scholars from either party will think about whether we could test everybody or DNA in order to create a data bank and eliminate rape, issues like that that are remote. Who knows.

President Roosevelt, for example, named a series of judges who certainly agreed with the two basic propositions of the New Deal, constitutional propositions, that the national government could regulate the national economy, and that the national and local governments could provide health and safety regulations without running afoul of the contracts clause.

But between 1938 and 1941 those propositions were established. After that, the justices he appointed, like Black and Douglas on the one hand, and Frankfort on the other, had completely different views on issues that Franklin Roosevelt could not have imagined, like contraceptive rights.

MR. GRAY: But I do think, if I could just -- I do agree with peering far into the future is impossible, and certainly President Roosevelt the first, Theodore, was very disappointed with his college friend, Oliver Wendell Holmes, who didn't vote the way he wanted to on his antitrust activism. But I do think that while that's true, there are certain very, very basic issues about the size of government and the role of government, where I do think you can project into the future and see how people might vote.

MR. WATTENBERG: Let me ask two questions which are sort of the same question. One is, on the assumption that the Senate will be narrowly divided, I think everybody is agreeing, you're not going to have some 60/40 split, it's going to be two, three, four Senators difference. Given the experience of Judge Bork, is it fair to say that whichever party is in power in a close Senate, whichever of these men are chosen, the president picks someone who is of an extreme as opposed to in the center, that the Senate is going to jump up and down, and his nomination is going to end up pulled? I mean, that's what we've seen in a number of cases.

MR. GRAY: It's a question of degree, Ben. It really is a question of degree. It's a question that can only be asked at the time a nominee is put forward, and someone has retired. And it differs from nomination to nomination. I've been involved personally in two, and each one is sort of a world unto its own. You're right, the more narrow the Senate majority, the less voting room a president has. But I do think it matters a great deal who organizes the Senate, and it matters a great deal who is the president.

MR. WATTENBERG: It used to be sort of a slam dunk, the president nominated somebody and that was sort of it. In recent years, it's not such a slam dunk, is that right?

MR. DELLINGER: I think so. The last couple, of course, the Senate has moved fairly expeditiously.

MR. GRAY: But they were centrist judges.

MR. DELLINGER: I think that's right. I think we're not going to go back to a time -- one of the reasons I think it is hard to predict beyond the other issues is, I think on criminal law issues, for example, which used to be a hot button, when you think of sort of Justice Brennan and Marshall, when you think of the criminal law regulation, actually the most innovative thing on criminal law issues now is being done by Justices Scalia and Thomas. The court is not breaking down, the criminal law -- the professionalization of America's criminal law has happened.

MR. WATTENBERG: What are Scalia and Thomas doing?

MR. DELLINGER: Well, for example, they are thinking very seriously about whether all these reforms, like the sentencing commission, are actually consistent with the Constitution. The sentencing commission lets a jury convict on one thing, and then lets the judge decide, not the jury, and without showing beyond a reasonable doubt, let the judge decide whether the defendant did a lot of these drugs, or a lot of other exacerbating factors, or aggravating factors. And Scalia and Thomas, I think, are intellectually leading a revolution to say that all of that is taking too much power away from the jury. And they're reading the constitutional principal very seriously.

MR. WATTENBERG: Let's go out now just, Boyden, Walter, how important is this election for the direction of American law and the Supreme Court particularly?

MR. GRAY: I think it's very important because you have a period of eight years of Clinton driving, if you will, the balance of 12 years of Reagan and Bush, and so now you have a very even judiciary, evenly balanced. And whoever is president, if he is for eight years, will shape the direction of all the judiciary, not just the Supreme Court, for a generation.

MR. DELLINGER: I think, in the short-run, very important because of issues like abortion, like the power of Congress to protect civil rights, the power of administrative agencies that deal with health and safety and environmental issues. In the longer run, I think harder to predict what the consequence will be.

MR. WATTENBERG: Okay. Thank you, Boyden Gray, Walter Dellinger, and thank you. Please remember to send us your comments via email. For Think Tank, I'm Ben Wattenberg.

ANNOUNCER: We at Think Tank depend on your views to make our show better. Please send your questions and comments to New River Media, 1219 Connecticut Avenue, Northwest, Washington, D.C. 20036, or email us at thinktank@pbs.org. To learn more about Think Tank, visit PBS Online at pbs.org. And please let us know where you watch Think Tank.

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Additional funding is provided by the John M. Olin Foundation, the Lynde and Harry Bradley Foundation, the Smith Richardson Foundation, and the Donner Canadian Foundation.

(End of program.)

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