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CARROLL: New president may reshape high court

By Linda Carroll

Published October 22, 2008 at 12:05 a.m.

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With just two weeks left until the presidential election, the financial crisis is dominating the news. Unfortunately, few Americans are talking about the president's most enduring power - the power to determine the composition of the Supreme Court.

The next president may make at least two appointments to the court. On Jan. 20, 2009, six of the nine justices will be age 70 or older.

Today, Americans are regularly gaining or losing their constitutional freedoms by 5-4 decisions.

Contrary to what you may have read in The New York Times, America is not in the hands of a "moderately conservative" court. In fact, the court has four liberal justices, four conservative justices and Justice Anthony Kennedy, who votes on both sides. This split has led to some surprisingly close decisions.

Last summer's decision in District of Columbia v. Heller held the Washington, D.C., gun ban to be unconstitutional. The outcome was not surprising to most Americans. Most of us know what "the right of the people to keep and bear arms" means.

What was truly frightening is that four of the justices actually think the Second Amendment does not protect an individual's right to possess a handgun to defend his home and family. To most of us, the Second Amendment protects this right. Instead, that view prevailed by only a single vote.

Had a President Obama been able to replace one of those five justices, the decision probably would have rendered the Second Amendment obsolete.

On the other hand, the Kelo v. City of New London decision of 2005 was a 5-4 decision that outraged Americans across every sector. Four liberal justices joined Kennedy in saying that a government may use the power of eminent domain to seize a person's home and transfer the property to a private developer.

The dissenting justices said the Fifth Amendment permits only the taking of private property for "public use." Taking a citizen's property to sell to a private developer is obviously not for public use.

The majority decision approved a reverse-Robin Hood phenomenon in which cities seize the property of the poor and transfer it to the rich, all in the name of "economic development."

Once again, the two presidential candidates would tip the balance in opposite directions. A President McCain probably would appoint justices like those who tried to protect the private homeowner, while Obama clearly favors justices like those who ruled in favor of the city at the expense of poor and middle-class property owners.

For those who believe that Americans have a right to possess firearms to protect their homes and that they have a right to keep their homes when threatened by developers, McCain is their man.

For those who oppose gun ownership and believe their property should be only as secure as the whims of government officials, then Obama would be the preferable candidate.

It is clear that Americans will make a decision Nov. 4 that will affect the country for generations. Many constitutional questions hang in the balance, and all of us need to be aware of what is at stake.

Linda K. Carroll, of Colorado Springs, has served for the past eight years on the Colorado State Commission on Judicial Performance.

Comments

  • October 22, 2008

    6:52 a.m.

    Suggest removal

    Mike_In_Hartsel writes:

    A conservative court will tend to stick to the status quo unless there is a good argument for altering it. Changes come slowly.

    A liberal court tends to seek reasons to change the status quo by reasoning change is good. It legislates from the bench.

    A liberal court will do a lot more harm.

  • October 22, 2008

    8:24 a.m.

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    ghoax writes:

    no way around that one, the chances of a conservative judge being confirmed are slim to none with the liberal regime in office.

    It will be just one of the many issues that will ultimately cause the rising of the people to toss the fools off the boat, but, will take a few years to feel the total effects of their democrat vote and failed democrat policies. sometimes a drowning person has to get dunked a few times to be rescued....welcome to our dunking.

    At some point, the people will discover that they have been misled by the liberal agenda and that its time to get back to basics. Its just too bad it has to be that way, but it is the way it is.

  • October 22, 2008

    11:02 a.m.

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    DougH writes:

    It is truly amazing that Linda Carroll has served on the Colorado State Commission on Judicial Performance for eight years as this example of her facts and knowledge is nothing more than conjecture and supposition.
    It is absolute speculation that Obama would have rendered the Second Amendment obsolete. He has publicly said just the opposite in his advertising.
    Ms. Carroll has also totally misstated the Kelo v. City of New London decision of 2005. This old boys recollection is that the majority of the court said that since there is no state or local ordinance against this type of annexation, then the court could not overturn it. This Is the sort of strict constitutionalist rendering that Conservatives think we should have.
    You really have to wonder how this woman ever got on the Judicial Performance Committee, maybe someone should review her performance.

  • October 22, 2008

    11:03 a.m.

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    rickg19611 writes:

    There is some good news though.....

    If Obama is able to get enough clueless people to vote for him, he'll likely end up only replacing liberals with other liberals.

    The justices most likely to leave the bench are the liberal justices. So the likely net effect of Obama replacing a departing liberal judge is to..... replace them with another liberal judge. Net result. Nothing.

  • October 22, 2008

    11:05 a.m.

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    Spencer writes:

    Why no mention of Roe V Wade? I think I know, easier to appeal to gun owners. Can we afford more stooges like the ones Bush appointed?

  • October 22, 2008

    12:21 p.m.

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    Debunkin8tor writes:

    Doug H. says "It is absolute speculation that Obama would have rendered the Second Amendment obsolete."

    No, it isn't. The history of liberal justices can easily be looked up. They are, to a person, aligned on the following issues: The Second Amendment does not protect the individual right to bear arms; the "right" to abortion is constitutionally enshrined such that even reasonable restrictions - like a ban on late term abortions - must be struck down; there are few constitutional bounds to the ability of local, state, and federal governments to act however they wish, including taking your home for the benefit of private development; the death penalty should be banned; and, as we would see with an Obama presidency, gay marriage is also a constitutional right (see CA, CT, and MA supreme courts). Regardles of his campaign rhetoric on guns, do you think Obama will appoint justices like Ginsburg, or Roberts?

    Those who have knowledge of jurisprudential history - like Linda Carroll, not Doug H. - know the obvious answer.

  • October 22, 2008

    12:23 p.m.

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    robbyr2 writes:

    Hmm...
    I knew there was a good reason to vote against retaining the judges the Commission thought should be retained. Ms. Carroll's misinterpretation of "eminent domain" shows how little intellectual integrity she has. Usually, the only issue in eminent domain is whether a few people will be able to stick it to the rest of us by getting outrageous prices for their property. The case in New London was relatively unique because the property owners refused to sell for any price- that I can understand and appreciate. Again, that's rarely the issue... and usually "fair market value" is overstated by the government entity to make it simpler.

  • October 22, 2008

    12:27 p.m.

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    jay writes:

    it always boils to conservative activist judges when you corner most of the conservative folks on why they vote republican.

    they simply can't justify a vote based on policy stances, so when held down, they start spouting about the supreme court.

    i'm still mystified that folks believe that judges outlawing abortion isn't activisim when presented with facts that the majority of americans want abortion to remain legal, safe and rare.

  • October 22, 2008

    1:43 p.m.

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    Shaupeen writes:

    Hopefully the next president will be intelligent enough to leave religion out of the selection process.

  • October 22, 2008

    5:31 p.m.

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    jay writes:

    i'm not sure that's possible, shaupeen, considering that a candidate of certain supernatural beliefs may actively try to sway the court to vote against the will of the majority of americans...making it an activist court.

    considering that possibility, i would think that any nominee should be grilled extensively on their beliefs in superstitions, rituals and rites.

    i say no to judicial activism...don't you?

  • October 22, 2008

    7:24 p.m.

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    enginerd writes:

    Shiftless jay,

    Judicial activism is when the court acts as legislature. It is an unconstitutional usurpation of power. It is not, as you state, voting against the will of the majority of Americans.

    You need to understand this simple concept: The limited powers of the government were granted by the people and spelled out in the Constitution. The basis of the court's rulings should always begin with the Constitution. The job description of a judge does not include bowing to public opinion. That is what we elect the legislature for.

    There is no such thing as a conservative activist judge - it is a contradiction in terms. Roe v. Wade is an example of judicial activism. (You could read Byron White's dissenting opinion if it wouldn't make your head explode.) Overturning it and allowing elected state legislatures to decide the issue would be a sound interpretation of the Constitution, not judicial activism.

  • October 29, 2008

    4:11 a.m.

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    d7d writes:

    Hey Linda! Guess what? ...Most Americans don't keep a handgun in their closet because they choose to not live in fear, and weapons (as a rule and hunting aside) are symbols of our fears.
    How can we be/feel safe?
    We can build communities through interaction and ownership and contribution.
    We can know our neighbors and respect how we differ, yes, but more important: All that we have in common.
    Safety isn't acheived with bullets and barricades of broken glass, it's found with awareness and belonging.
    Please don't use your respected position to divide issues into black and white. You've been around long enough to see life is shades of gray or perhaps even ...colors.