The Supreme Issue


By Alan M. Dershowitz

Published October 16, 2008, issue of October 24, 2008.
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No election in recent history has been more important to the future of our constitutional rights than the current presidential contest. Our next president will have enormous influence on the direction of the Supreme Court.

The high court is currently divided into two wings: The right consists of John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito, while John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer comprise the moderate wing. (There are no liberals on the Supreme Court in the tradition of the late justices William Brennan, Thurgood Marshall, Earl Warren, William Douglas or Arthur Goldberg). The swing vote on the current court is often cast by Anthony Kennedy.

The right wing has three relatively young justices: Roberts is 53, Thomas is 60 and Alito is 58. The moderates are older: Stevens is 88, Ginsburg is 75, Breyer is 70 and Souter is 69. Kennedy is 72 (as is Scalia).

Although the Senate — which is likely to have a Democratic majority — must confirm the president’s nominees, it is rare that a Supreme Court nomination is rejected, especially if the nominee is an experienced lawyer or judge. And the new president is almost certain to have at least one vacancy during his first term and is likely to have two or three. If the next president fills these vacancies with young jurists, which has been the trend of late, he can shape the high court for 25 or 30 years into the future.

The constitutional right that hangs most in the balance is one that is of the utmost importance to American Jews: the right to live in a country in which church and state remain separated by the high Jeffersonian wall. It is this right — guaranteed by the First Amendment and by Article 6 of the Constitution — that has assured American Jews their status as equal and first-class citizens of this great country.

The First Amendment guarantees both the separation of church and state (“no law respecting an establishment of religion”) and the “free exercise of religion.” Article 6 precludes any “religious test” for office holding.

As interpreted until recently, these provisions — which reflected the views of Jefferson, Madison, Hamilton and our other founding fathers — gave life to George Washington’s promise to the Jewish community of Newport, R.I.: “All possess alike liberty of conscience. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights. For happily the government of the United States, which gives bigotry no sanction, to persecution no assistance, requires only that they who live under its protection, should demean themselves as good citizens.”

American Jews have kept our part of the bargain. We have been “good citizens” who merit first-class status. But there are those who would relegate us to second-class status because we are not Christians and because, in their benighted view, this is a “Christian nation.”

The court’s right wing seems determined to chip away at the wall of separation by limiting the right of citizens to challenge governmental actions that favor Christianity over other religions and over the views of citizens who do not subscribe to any religion. In a 2007 case, Hein v. Freedom From Religion Foundation, Inc., a 5-4 majority of the court ruled that taxpayers lack standing to challenge discretionary payments authorized by the executive branch to Christian organizations, even if these grants would violate the First Amendment.

Closely related to the separation of church and state is a woman’s right to choose, which is opposed by many on religious grounds. Up to now the court has rejected frontal challenges to Roe v. Wade, electing instead simply to narrow the scope of that decision. One or two new justices might well shift the balance toward directly overruling that 35-year-old precedent.

In addition to these specific rights, important as they are, the most fundamental value at stake in the coming election, as it relates to the Constitution, is how the Supreme Court will strike the balance between liberty and security. In recent cases that balance has been struck somewhat favorably in the direction of Guantanamo detainees. In future cases, it is difficult to predict the precise contexts in which the right of the individual will be pitted against the security of the state.

These are among the important stakes in this year’s election.

Alan Dershowitz is the Felix Frankfurter Professor at Harvard Law School and the author, most recently, of “The Case Against Israel’s Enemies: Exposing Jimmy Carter and Others Who Stand in the Way of Peace” (Wiley).

As the race for the White House continues, the Forward presents the views of policy makers, opinion-shapers and even a politician or two in a nonpartisan forum offering a balanced range of opinion. The views expressed are not endorsed by the Forward, which does not support or oppose candidates for public office. This series is intended to help our readers educate themselves on the issues surrounding the quadrennial November dilemma.

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