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.
The Forward welcomes reader comments in order to promote thoughtful discussion on issues of importance to the Jewish community. In the interest of maintaining a civil forum, the Forward requires that all commenters be appropriately respectful toward our writers, other commenters and the subjects of the articles. Vigorous debate and reasoned critique are welcome; name-calling and personal invective are not. While we generally do not seek to edit or actively moderate comments, the Forward reserves the right to remove comments for any reason.
Copyright © 2013, Forward Association, Inc. All Rights Reserved.
Claims Conference Chief Knew of $57M Holocaust Fraud Probe Earlier 
Rama Burshtein Offers Rare Glimpse of Orthodox World
Top Dog: Who Makes the Best Kosher Hot Dog in America?
'War' With Ultra-Orthodox at Kotel? Bring It On
What 'Jews a Race' Debate Means for Israel
You've successfully signed up!
Mr. Dershowitz is incredibly alarmist, and has a strange definition of "moderate." The fact is, we've been protected in this country from the systemic anti-semitism that occurred in Europe BECAUSE of the truly Christian ideals of most of the people in this country (until recently) and the judicial philosophy of the "right wing" of the Supreme Court he so openly disdains. It is not official protection by the government we should want, which we've had in some -- if not most -- of the places where pogroms have caused us misery (Poland, for example); rather, it is protection FROM government, and the "right wing" justices and people like them are the most likely to keep that in place. Mr. Dershowitz then unleashes the spectre that Roe v. Wade might be overturned. Well, that would be excellent, since that would restore Constitutionalism to the abortion question by returning the matter to the several States to decide. If "pro-choicers" want to keep "reproductive rights" in place, then those of us who believe protecting innocent life should be the highest value (in keeping with Torah, I would point out) will be glad to contest the issue State-by-State. But a desire to win without a fight via judicial fiat should not trump the Constitution, even though that is the current state of things on abortion.
I disagree to an extent. What America needs is to get back to what the forefathers who led this country and wrote the constitution did...pray to the God of Abraham, Issac and Jacob. The same God who Blessed this country over two hundred years ago with his Holy Spirit. That's right, we need a religious right winger to get this country on course. This is a Christian nation, but we will all benefit... especially the Jews!!!!
Preofessor Dershowitz is right on target. If the replacement for 88 year old Justice Stevens, alone, is a religious right winger, we will lose church/state separation and for the first time, ever, there will be a five vote majority on the Court that will scuttle 61 years of precedent and now allow all branches of government to openly promote religious concepts. This would be a tragic backsliding into theocracy.
Dershowitz raises the issue of "precise context" vis-a-vis rights vs. security. In my mind, this alludes to "black and white" areas for deliberation. When one considers that most assaults on security are by sleath tactics (calls for violence and recruiting for violence via the internet, actions aimed at establishing Sharia law, "safe harbor" claims where illegals are concerned, and others, the Supremes should not sacrifice security on the altar of unfettered rights of individuals, some of whom are not beneficiaries of the Constitution
Michael Santomauro - I don't really understand how you have brought up your grievances in reaction to an article about the US Supreme Court. Anyway, despite your strange claim that the Holocaust is unique in that it is not subject to historic investigation - it would be hard to imagine another event that has been so thoroughly researched, analyzed and discussed as the Holocaust. Even those wishing to deny the veracity of the Holocaust (like you, I suppose) have published many books and articles - so your "outrage" is quite strange, indeed. There are, in fact, democratic states that have deemed Holocaust-denial a crime - primarily Germany and Austria. It's clear that the root of logic in these two states is the shock and shame that their society was responsible for such an unspeakable crime. They wish to protect their democracies through legislation which forbids the renewal of Nazism. Obviously, they interpret Holocaust-denial as an expression of anti-Semitism and neo-Nazism. But elsewhere in the democratic world (the UK, the USA) as well as in the non-democratic world (in Arabic-speaking societies), Holocaust-denial is quite common and legal. Actually, I am quite confident that should I call the phone number that you have left for us, you would be able to refer me to dozens of books and websites that present your "history". Finally, to the editor of the Forward - you have written on this page that "while we generally do not seek to edit or actively moderate comments, the Forward reserves the right to remove comments for any reason". Every so often, anti-Semites wish to exploit the "readers' comments" option in order to attack the Jewish people. You, our editor, should remove such comments immediately. Again and again, I am caught by surprise that you do not execute your right and remove anti-Semitic comments.
Jimmie, Actually, many of the Founding Fathers, i.e. those who wrote the Constitution, were Deists, akin to agnostics. I would grant that a predominantly Judeo-Christian European culture shaped them; however, so too did the Enlightenment, also known as the Age of Reason. Even within the Christian faith, the population of the colonies and the early United States represented a number of different sects and denominations: Puritans, Quakers, Roman Catholics, Anglicans, Presbyterians. Therefore, while the Founding Fathers may have prayed to the Judeo-Christian God (who is the same being as Allah, by the way) on an individual level, they made very sure that faith and government were distinct entities. Perhaps the United States began as and is yet a largely Christian 'nation', but it is not and never has been a Christian state.
Kol ha-kavod! I see that the anti-Semitic comment has been removed. All praises to the Forward.
Thank you Mr Dershowitz...Also the Dems must not nominate anyone over the age of 50. This is how the right wing of the republican party has given us justices that will be around for 30-40 years.
NO! THE "SUPREME" ISSUE IN THIS ELECTION FOR JEWS IS THE SURVIVAL OF THE JEWISH STATE OF ISRAEL. BARAK HUSSEIN OBAMA IS A CLEAR AND PRESENT DANGER TO ISRAEL, FIRST AND FOREMOST BECAUSE HE WILL NOT BOMB IRAN'S NUCLEAR WEAPONS FACILITIES, AND CAN EFFECTIVELY PREVENT ISRAEL FROM SUCCESSFULLY DOING SO. THE RESULT: TEL AVIV INCINERATED AND A SECOND HOLOCAUST.
With the Senate firmly in the hands of the far-left Democrats, there is no chance that President McCain would propose, much less obtain, an overly conservative Supreme Court nomination. This is for Jews really a non-issue. On the other hand, the physical survival of the Jewish State of Israel is the central issue in this election. Every other economic and social issue pales in comparison. It is clear that despite his adroit political handlers, that Barak Hussein Obama is no friend to Israel, either emotionally or as a matter of policy. It would take far too long to chronicle all of the facts known about his background, beliefs, associations, anti-Israel policy advisors, and naively dangerous appeasing policies. Jesse Jackson, while a virulent antisemite, was quite forthcoming about what an Obama administration would mean for "Zionist" influences in American governmnent and policies under an Obama administration. It is however, very telling, when even the French President is worried about his naive policies (even after direct consultations with Obama and his staff) towards Iran's nuclear weapons program. Here is a recent article from Ha'Aretz (a very liberal newspaper): "SOURCES: SARKOZY VIEWS OBAMA STANCE ON IRAN AS `UTTERLY IMMATURE' By Barak Ravid French President Nicolas Sarkozy is very critical of U.S. presidential candidate Barack Obama's positions on Iran, according to reports that have reached Israel's government. Sarkozy has made his criticisms only in closed forums in France. But according to a senior Israeli government source, the reports reaching Israel indicate that Sarkozy views the Democratic candidate's stance on Iran as "utterly immature" and comprised of "formulations empty of all content." Obama visited Paris in July, and the Iranian issue was at the heart of his meeting with Sarkozy. At a joint press conference afterward, Obama urged Iran to accept the West's proposal on its nuclear program, saying that Iran was creating a serious situation that endangered both Israel and the West. According to the reports reaching Israel, Sarkozy told Obama at that meeting that if the new American president elected in November changed his country's policy toward Iran, that would be "very problematic." Until now, the five permanent members of the UN Security Council plus Germany have tried to maintain a united front on Iran. But according to the senior Israeli source, Sarkozy fears that Obama might "arrogantly" ignore the other members of this front and open a direct dialogue with Iran without preconditions. Following their July meeting, Sarkozy repeatedly expressed disappointment with Obama's positions on Iran, concluding that they were "not crystallized, and therefore many issues remain open," the Israeli source said. Advisors to the French president who held separate meetings with Obama's advisors came away with similar impressions and expressed similar disappointment. According to the Israeli source, Sarkozy plans to begin intensive negotiations with the new American administration, regardless of whether it is headed by Obama or Republican Sen. John McCain, even before the new president takes office in January, with the goal of persuading him to continue the current policy on Iran. But Sarkozy's pessimism does not stem only from Obama's stance; it also stems from the overall behavior of the international community toward Iran's nuclear program, and particularly its inability to agree on a fourth round of Security Council sanctions against the Islamic Republic. This foot-dragging will make it impossible to effect a change in Iran's nuclear policy, Sarkozy believes. The French intelligence community believes that Iran has already obtained about 40 percent of the enriched uranium it would need for its first bomb, and that at its current rate, it will obtain the rest of the uranium it needs in the spring or summer of 2009. However, French agencies are divided over what Iran is likely to do once it has this uranium. One view is that the Iranians will immediately make a nuclear bomb, in order to demonstrate their capability. The other is that Iran will continue enriching uranium without making a bomb - at least until it has enough enriched uranium for several bombs." Here is the link for confirmation: http://www.haaretz.com/hasen/spages/1031943.html By the way, not only did Iran's Parliament Speaker, Ali Lalrjani, who reports to Iran's Ruling Ayatolla Ali Khamenei, endorse Obama two days ago, but now Hamas is running phone banks out of Gaza, calling American Voters urging them to vote for Obama. I'm afraid Sarkozy and Jesse Jackson agree on what an Obama administration will mean for Israel.