The Court Supreme and the Election

In the past two weeks, the Supreme Court handed down four decisions that could affect the dynamic and rhetoric of the Obama-McCain matchup. From the landmark Second Amendment ruling in D.C. v. Heller to the less-noticed tweaking of campaign finance law in Davis v. F.E.C., all four rulings broke from the Roberts Court's recent trend and reverted back to the five-to-four, liberal-v.-conservative bloc rulings of the past. Anthony Kennedy cemented his position as the new O'Connor-ite swing vote, Nino Scalia finally got to write a binding manifesto for the conservative movement, and Samuel Alito struck a blow for millionaires everywhere.

All four decisions broke 5-4, with the liberals (Stevens, Souter, Ginsburg, Breyer) opposing the conservatives (Scalia, Thomas, Roberts, Alito) and with Kennedy swinging liberal twice and conservative twice. In today's political world, of course, the candidates will probably be helped most by the decisions they opposed: nothing strengthens a call for new blood on the Court like giving rights to terrorists or declaring a sacred right to own a gun.

Protocol analysis of the decisions and their possible effects on the election below the fold.

In declining order of importance:

1. D.C. v. Heller
The decision: In a 5-4 opinion by Scalia, the Court for the first time interpreted the Second Amendment to guarantee an individual right to bear arms unlimited by the requirement of a state militia. The federal government cannot ban the ownership of any gun traditionally used for self-defense, and faces an as-yet-unspecified level of scrutiny on any restrictions it seeks to impose. Scalia carefully hedges that certain types of "unusual and dangerous" weapons may be banned, and that restrictions ownership by felons, minors, and the mentally handicapped would be allowed. For all its radical historical importance, the ruling itself is quite narrow: it explicitly leaves unaddressed the question of whether the Second Amendment is incorporated to apply against the states as well as the federal government.

The political fallout: McCain on offense, Obama on effective defense. Gun control has long been a hot button issue for the right, less so for the left. Obama's official position on gun control (stashed away in "Sportsmen" under "Additional Issues" on his website) has been consistent: he supports the individual right interpretation but leaves room for restrictions. He did say that he believed the D.C. handgun law was constitutional. McCain, despite his C+ from the NRA and staggering F- from Gun Owners of America, signed the amicus brief on Heller's behalf and has attacked Obama for flip-flopping on the issue.

Protocol Advantage?: Obama. His position was carefully tailored to blunt the impact of the decision: he knows it's political poison in these United States to oppose a Second Amendment right to bear arms. The decision will likely cement his support among those who fear a full-on right-wing Court under McCain, but his vaguely moderate gun control position won't turn off the great middle.


2. Boumediene v. Bush
The decision: In a 5-4 opinion by Kennedy, the Court held that all detainees held in Guantanamo Bay have the habeas corpus right to be informed of the charges against them and freed if evidence to support their detention is lacking. The Court, and not the Executive branch, is the final arbiter of "enemy combatant" determinations, Congressional legislation to the contrary notwithstanding. Protocol analysis here and here.

The political fallout: McCain responded cautiously at first, but then realized that Boumediene plays directly to his self-portrait as the only candidate serious about the War on "Terror" and called it "one of the worst decisions in the history of this country.” (Probably after an aide read it and found Scalia's gift: "[this decision] will almost certainly cause more Americans to be killed.") Obama's statement supporting the decision hit some strong notes--"this is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus"--which were then promptly undermined by some pure bullshit: "this Administration's position is not tough on terrorism." Really?

Protocol Advantage?: McCain. The hard right, already deeply suspicious of McCain's conservative bona fides, hates Kennedy and sees Boumediene as an unconscionable act of aid and comfort to the nation's enemies. In an election where McCain's success may depend on his ability to turn out the footsoldiers, his promise to appoint more Scalias and Alitos will only seem more vital.


3. Kennedy v. Louisiana
The decision: A 5-4 Court, again led by Kennedy (no relation, we hope), struck down a Lousiana statute allowing the death penalty for child rape. Interpreting the "cruel and unusual" language of the Eighth Amendment, the Court held that the ever-changing meaning of those words currently forbids the death penalty for any crime other than murder. Civilized people rejoiced; bloodthirsty revenge-mongers groused angrily.

The political fallout: Eh. Sad to say, the American public seems to have found its consensus on the death penalty--which Justice Kennedy, with his O'Connor-esque nose for public opinion, conveniently reflected in his decision. Obama made a lurch to the center by stating his public opposition to the holding, presciently warding off any gotcha debate questions along the lines of "so if your daughters were raped, you wouldn't call for the rapist's death, what kind of fuckin man ARE YOU?"

Protocol Advantage? Wash. The death penalty just isn't an issue either side gets too worked up about anymore. Obama's triangulation on the issue leaves him well-protected from those on the right who really really want to kill child rapists (and I mean, who kinda doesn't), and the left won't abandon him over it.


4. Davis v. Federal Election Commission
The decision: In yet another 5-4 opinion, this time by Alito, the Court struck down the Millionaire's Amendment of the McCain-Feingold campaign finance act. The provision allowed the opponent of a candidate who poured his own money into a race to receive extra donations to offset the millionaire's effect. Alito's opinion, mostly on First Amendment grounds, continued the Roberts Court's gutting of McCain's pet project by holding that the government cannot interfere with money-as-speech, even in the context of a public election.

The political fallout: Not a lot. The average voter doesn't get too worked up about complicated pieces of campaign finance reform legislation, and neither McCain nor Obama probably wants to play this up much. McCain's efforts to reform campaign finance outraged the right, who saw the law as an act of rank treason against Republican interests. If the Court had upheld the provision, he might have wanted to use it to play toward the middle's widespread disgust with corrupt politicians--but what's the point in highlighting a right-wing Court's full-on dissing of his law? And Obama won't want to remind voters that McCain made his bones in the public eye largely as a maverick outsider who vowed to clean up the system--and who passed the most comprehensive campaign finance bill since Watergate. Both candidates will probably let this one lie.

Protocol Advantage? Slight McCain--any play this decision will get among voters will only remind them of McCain's credentials as a reformer. The right will be pleased that the provision was struck down, and since they already hate him for the act in the first place, they're not gonna hate him more now.

Millionaires, child molesters, gun owners, and terrorists all have their appointed roles to fill under the October Protocol.