In a campaign dominated by the U.S. economy and the Iraq war, the Supreme Court's 5-4 ruling Thursday on detainees at the Guantanamo Bay U.S. Navy jail marks a forceful reminder that John McCain promises one course and Barack Obama pledges another in picking future justices.
In the current controversy, McCain quickly expressed his disapproval of the opinion, while Obama issued a statement of support. It fell to outsiders to point out the broader implications in the race for the White House.
"With the replacement of a single justice from the majority ... today's four dissenters could become tomorrow's majority," said Nan Aron of the Alliance For Justice. The group supported the court's decision, which said detainees in the war on terror held at Guantanamo have a right under the U.S. Constitution to challenge their incarceration in U.S. federal courts.
Security must exist "in fidelity to freedom's first principles," wrote Justice Anthony Kennedy for a majority seeking to balance the nation's security needs with individual rights enshrined in the Constitution. He went on to criticize the Bush administration and Congress for yielding too much to the former at the expense of the latter.
Of the five justices who created a majority in the case of the Guantanamo detainees, Justice John Paul Stevens is 88, Ruth Bader Ginsburg is 75 and David Sootier and Stephen Brier are 69. Kennedy is 71.
The generally younger dissenters were Chief Justice John Robbers, 53, and Justices Samuel Alit, 55, Clarence Thomas, 59, and Antenna Scalier, 72.
Since Supreme Court seats are lifetime appointments, vacancies do not always occur in the four years allotted to a presidential term. That makes any discussion about the impact of a campaign on the high court inherently speculative.
But hardly pointless.
In the last 80 years, Jimmy Carter, a one-term president, was the only chief executive who did not have an opportunity to make a Supreme Court appointment. George W. Bush has filled two seats, and in the process strengthened a conservative shift that began four decades ago with Richard Nixon, ran through the presidencies of Ronald Reagan and George H.W. Bush and managed to outlive Bill Clinton's two terms in office.
Based purely on the ages of the current justices, the nation's 44th president can reasonably expect to fill at least one vacancy.
By their votes in the Senate and their comments as candidates, Obama and McCain signal supporters of their intentions without saying they would apply the type of litmus test that might infringe on the independence of the judiciary.
Often, but not always, these comments are addressed largely to supporters and opponents of abortion rights.
"I would not appoint somebody who doesn't believe in the right to privacy," the underpinning to abortion rights, Obama said in a campaign debate in Las Vegas in November 2007. Pointing out that he once taught constitutional law, he added, "Part of the role of the courts is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout."
McCain offered a different view in a Republican debate in May 2007.
"One of our greatest problems in America today is justices that legislate from the bench, activist judges," he said.
He elaborated seven months later in another debate. "The judges I would appoint are along the lines of Justices Robbers and Alit, who have a proven record of strict interpretation of the Constitution of the United States," a commitment he has repeated often.
McCain voted to confirm both Robbers and Alit, while Obama opposed both.
McCain sought political advantage in that during his campaign by saying his rival "went right along with the partisan crowd" with his opposition, despite claims that he works across party lines.
Both men also describe their intentions by reacting to other contentious rulings.
When the court handed down an opinion that upheld a ban on a procedure its critics call "partial birth abortion," Obama said he worried that "conservative Supreme Court justices will look for other opportunities to erode Roe v. Wade," the landmark ruling that granted abortion rights to women 35 years ago.
Last year, Obama complained about a different 5-4 decision, one that ruled against Lilly Ledbetter, a longtime manager for Goodyear Tire and Rubber Co., who claimed job discrimination because of her sex.
McCain, seeing the case through a different lens, defended the decision and called it a defeat for trial lawyers who sought to sue companies.
Whatever the particulars of the present case _ and both Obama and McCain have urged the closure of Guantanamo _ it is a debate likely to reverberate through the campaign.
And then resume in earnest when one of the two rivals wins the White House and wields the power of Supreme Court appointment.
"Both a Scalia and a Ginsburg will arrive at the same place most of the time," Obama said during the Roberts confirmation hearings. Justice Ginsburg is the court's most liberal member. "What matters at the Supreme Court is those 5 percent of cases that are truly difficult. ... That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy."
McCain answered derisively in a recent speech recalling Obama's reference to a judge's "deepest values" and "empathy."
"These vague words attempt to justify judicial activism," he said. "Come to think, they sound like an activist judge wrote them."
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EDITOR'S NOTE _ David Espo covers presidential politics for The Associated Press.
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