Sen. McCain (R-Ariz.), in a speech two weeks ago, echoed the views of conservatives who say "judicial activism" is the central problem facing the judiciary. He called it the "common and systematic abuse . . . by an elite group . . . we entrust with judicial power." On Thursday, he criticized the California Supreme Court for giving gays and lesbians the right to marry, saying he doesn't "believe judges should be making these decisions."
Sen. Obama (D-Ill.) said he was most concerned about a conservative court that tilted to the side of "the powerful against the powerless," and to corporations and the government against individuals. "What's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves," he said in response to McCain.
During one campaign stop, Obama spoke admiringly of Chief Justice Earl Warren, the former California governor who led the court in the 1950s and '60s, when it struck down racial segregation and championed the cause of civil rights.
Obama has also praised current Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter. "I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through," Obama said.
It is not just a theoretical policy debate.
Whoever is elected in November will probably have the chance to appoint at least one justice in the next presidential term. The court's two most liberal justices are its oldest: John Paul Stevens turned 88 last month, and Ruth Bader Ginsburg is 75.
That could establish a large conservative majority on the court for years. With conservatives in full control, the court would probably overturn Roe vs. Wade and the national right to have an abortion. The justices also could give religion a greater role in government and the schools, and block the move toward same-sex marriage.
If elected, Obama would be hard-pressed to create a truly liberal court. But by replacing the aging liberal justices with liberals, he could preserve abortion rights and maintain a strict separation of church and state.
(Sen. Hillary Rodham Clinton of New York, like her party rival for the presidential nomination, voted against confirming Roberts and Alito to the Supreme Court. Both men, she said, threatened Roe vs. Wade and the constitutional right to abortion. But she has had less to say during the campaign about the role of the courts.)
The McCain-Obama comments reflect a long-standing divide between conservatives and liberals on the role of the courts. Reduced to the simplest terms, conservatives say judges should follow the law, and liberals say they should ensure that justice is done.
Since Warren's retirement in 1969, conservatives have been ascendant in the high court, thanks to Republican domination of the White House. For the last three decades, Republican appointees have held at least seven of the Supreme Court's nine seats.
Nonetheless, McCain said he thought that "abuse of judicial authority" had continued unchecked. "The result, over many years, has been a series of judicial opinions and edicts wandering farther and farther from the clear meanings of the Constitution," McCain said recently at Wake Forest University in North Carolina.
As an example, he pointed to the Supreme Court ruling three years ago that struck down the death penalty as "cruel and unusual punishment" for murderers who were under 18 at the time of their crimes. He said the 5-4 decision in the case of Roper vs. Simmons was based on "airy constructs" such as "the evolving standards of decency."
"The result was to reduce the penalty, disregard our Constitution and brush off the standards of the people themselves and their elected representatives," McCain said.
Obama has thrown the charge of judicial activism back at Republicans.
"The nation has just witnessed how quickly settled law can change when activists judges are confirmed," he said last year. "In decisions covering employment discrimination to school integration, the Roberts-Alito Supreme Court has turned back the clock on decades of hard-fought civil rights progress."
He referred to the 5-4 decision that struck down the voluntary integration guidelines that were adopted by school boards in Seattle and Louisville, Ky. The same 5-4 majority also rejected a jury's discrimination verdict in favor of Lilly Ledbetter, a longtime manager for Goodyear Tire & Rubber Co. She showed she had been paid far less than men in the same job over many years. The court's opinion, written by Alito, said her lawsuit was flawed because she had not filed her claim within the time frame required by law.
The Ledbetter case illustrates the difference between Obama and McCain when it comes to judges. Obama sharply criticized the decision, saying the conservative justices ignored new discrimination she suffered with each unfairly low paycheck. McCain defended the decision and called it a defeat for trial lawyers who sought to sue companies.
When Obama voted against Alito's confirmation, he predicted the New Jersey judge would rule on the side of corporations. "If there is a case involving an employer and an employee, and the Supreme Court has not given clear direction, he'll rule in favor of the employer," Obama said a year before the court took up the Ledbetter case.
(The House passed a bill to overturn the Ledbetter decision, but it stalled in the Senate last month: Supporters fell just short of the 60 votes needed to halt a threatened Republican filibuster. Obama and Clinton voted to amend the law; McCain said he was opposed.)
Before his election to the Senate, Obama taught constitutional law at the University of Chicago. He said most cases, even those at the high court, could be decided by looking at the law and precedents.
"Both a [conservative Justice Antonin] Scalia and a Ginsburg will arrive at the same place most of the time," he said during the Roberts confirmation hearings. "What matters at the Supreme Court is those 5% of cases that are truly difficult. In those cases, adherence to precedent and rules of construction will only get you through 25 miles of the marathon. 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.
"In those difficult cases, the critical ingredient is supplied by what is in the judge's heart."
In a speech this month, McCain derisively quoted Obama's reference to a judge's "deepest values" and "empathy." "These vague words attempt to justify judicial activism. Come to think, they sound like an activist judge wrote them," McCain said.
Many conservatives praised McCain's focus on a limited role for the courts.
"Much as I like and respect Barack, I think his vision of judging couldn't be more wrong," said Bradford Berenson, a Washington lawyer who worked in the current Bush White House and knew Obama at Harvard Law School. "Whereas McCain wants our judges and Supreme Court justices to be faithful to the Constitution . . . and decide cases according to law, Barack seems to think judges should systematically favor certain parties or groups and decide cases according to their personal sympathies or feelings about how who needs or deserves help."
Harvard Law School professor Laurence H. Tribe, who is an advisor to Obama, said McCain's speech "relied on simplistic and misleading slogans about judicial activism."
"Sen. Obama certainly doesn't share Sen. McCain's remarkable view that the greatest threat to American values and traditions comes from our independent federal judiciary," Tribe said. "On the contrary, Sen. Obama would find it crucial to preserve judicial independence in part to hold in check the excesses of unilateral executive power that have threatened our democracy under the Bush-Cheney administration."