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Supreme Court harder to figure out this term

Friday, October 5, 2012 - 12:01 am

So we need to know what the presidential candidates think.

The presidential race has gotten most of the political attention lately, but something happened Monday that will likely have more long-term effect on Americans than who the next chief executive will be – the new Supreme Court term started. In watching the presidential race, we have to decide whether we want more government or less government. To gauge the court, we try to determine whether it’s headed toward a stricter interpretation of the Constitution or a looser one.

And that got harder to tell last term. Until then, it had seemed the court had four conservatives, who put their trust in original intent, and four liberals, who see the Constitution as a living document, and one maverick named Anthony Kennedy who could go either way. Now there exists the possibility that Chief Justice John Roberts is another maverick.

Usually seen as a conservative, Roberts stunned everybody, especially the other three conservative justices, by providing the fifth vote for upholding President Obama’s Affordable Care Act. He also wrote the majority opinion, using language and reasoning that made many wonder whether he really thought justification for the act could be found in the Constitution. Was he perhaps playing a little political game, hoping to avoid the court becoming a campaign issue?

Will he now revert to his conservative ideology? Or will he become as unpredictable as Kennedy? The answer to that question matters to all of us a great deal, whichever judicial ideology we happen to prefer.

The court has some very big issues on its agenda this term, including cases on several civil rights issues, among them affirmative action and gay marriage. It might hear a challenge to the Voting Rights Act of 1965, and it is possible the justices will revisit the infamous Kelo decision that eviscerated property rights. It might be nice to determine whether we now have four justices or three who take the Constitution’s words seriously, one justice or two who will delight in clouding our minds.

Either Obama or a newly elected President Romney will probably have one or two Supreme Court appointments in the next four years. Given how evenly divided the court is now, those appointments will likely set the court’s direction, which will affect us all for decades to come.

That would be a nice subject for Obama and Romney to debate, don’t you think? Too bad it didn’t come up in Wednesday’s session devoted to domestic issues. Two debates are left, and the one with a town hall format will cover both foreign and domestic issues. Perhaps an audience member will be smart enough to seek an answer.