Committee for Justice president Curt Levey discussed the
future direction of the Supreme Court in an interview in the Fall 2012 issue of
The Objective Standard
, the nation’s leading
The interview touched
on Supreme Court retirements, the next president’s nominees, the future of Roe v. Wade
, the issues that will
dominate the Court over the next decade, and more.
Excerpts of the interview are below. The full
3000-plus word interview is available here
(subscription only) or from CFJ by request.
On Supreme Court
Levey: Justices Antonin Scalia and Anthony Kennedy will both be eighty in 2016,
so I think they’d be next on the list [after Ruth Bader Ginsberg] to retire.
Scalia has explicitly said that he’d rather retire under a president who would
appoint a conservative; Kennedy, I don’t know that he cares. ...
There’s a strong likelihood that at least one of them will leave the
bench, which means that Obama, if reelected, will likely be able to replace one
of them with a liberal, and that’s all he needs to create a court along the
lines of the liberal court of the 1960s under Chief Justice Earl Warren. There
are already four predictable, consistent liberals on the court. All Obama needs to do is replace Kennedy or
Scalia, and he’s got the votes to do pretty much whatever he wants, from making
gay marriage a constitutional right to requiring taxpayer funding of abortion,
Romney Supreme Court nominees:
Levey: I’ll start with Romney. Paul Clement has to be number one on the list. He’s a former United
States solicitor general, and everyone agrees he’s a brilliant guy. He has
argued some controversial cases, including ObamaCare and the Arizona immigration
case recently; but he’s respected by both sides of the aisle, and it would be
very hard to block him.
Another possibility is Viet Dinh, formerly head of the Office of Legal
Policy at the Department of Justice. He would be the first Asian American
justice. If Romney would want to go with a woman, the most likely would be
Diane Sykes of the Seventh Circuit; she’s certainly very popular with
conservatives. Some of the younger circuit court judges who would be fairly
likely include Jeff Sutton on the Sixth Circuit, Brett Kavanaugh on the D.C.
Circuit, and Neil Gorsuch on the Tenth Circuit.
There are also some possibilities from state courts, including Allison
Eid of the Colorado Supreme Court. She [clerked] for Clarence Thomas, worked at
the Department of Education for William Bennett, and served as solicitor
general of Colorado; I think she’d be an excellent pick.
note: Any brief discussion of potential Supreme Court nominees invariably
leaves out a lot of highly qualified potential nominees. If you’d like to point out some of the glaring
omissions, suggest dark horse candidates, or express your opinion about
potential Obama nominees, write to Curt Levey at email@example.com.]
importance of selecting the right nominee:
Levey: If you look at history, Democratic appointees to the
Supreme Court can be relied on to vote the “right” way (from the perspective of
the left) on the big divisive issues that we all care about. ... Although Obama’s Supreme Court nominees will
have their personal differences in philosophy, I don’t think the specifics of
who Obama nominates will make much difference in what the court does. ...
On the Republican side, it’s the opposite. One can name various
Republican appointees who have, if not a liberal voting record, such as
justices David Souter and John Paul Stevens, at least a moderate record, such
as justices Sandra Day O’Connor and Kennedy (and some might say John Roberts,
particularly after he upheld the ObamaCare mandate, but I wouldn’t go that far).
So whom Romney appoints would make a practical difference. ...
For Romney, there may be
more scrutiny of whom he would appoint to the court because of the ObamaCare
decision. Conservatives were starting to relax after the
appointments of Alito and Roberts. They felt like Republican presidents had
gotten the hang of selecting Supreme Court nominees with a conservative
judicial philosophy. But then Roberts blew that confidence out of the water
with his ObamaCare decision. We’re back to conservatives understanding that it
can’t just be any conservative nominee; it’s got to be the right conservative
On whether the
debate among conservatives over judicial restraint will influence the selection
of Supreme Court nominees:
Levey: There is a division. To summarize, some conservatives
would like the courts to be, not judicial activists in the “living
constitution” sense, but vigorous in enforcing the Constitution given to us by
the Founding Fathers. Then there are other conservatives who see deference to
the legislature as at least one important aspect of judicial restraint.
Typically that debate has not played out in the selection of nominees. Conservatives have been fairly united on
recent nominees, and they haven’t worried much about differentiating the two
strains of conservatism that you described.
Often, let’s face it, there’s not much room for nuance in the judicial
confirmation process. … People look at a nominee’s record; they see how he
ruled or what he supported. If they think he reached the right outcome most of
the time, they don’t worry about exactly what his judicial philosophy is—and
that philosophy may not even be stated explicitly in his work.
Romney appointees would seek to overturn Roe v. Wade and what the ramifications would be at the state level:
Levey: That’s hard to say. … I think the conservatives who
are currently on the court are divided. I always thought Roberts probably wouldn’t
overturn Roe v. Wade, and now, given what happened with ObamaCare, I’m
virtually certain that he wouldn’t. Scalia and Thomas would. Samuel Alito probably
would. Kennedy we know wouldn’t. ...
To whatever degree Roe v. Wade is weakened by the court, that
allows more discretion on the state level. If it were overturned, then states
would have complete discretion over regulating abortion; if it were weakened,
then states would have more discretion. ...
So you have a wide range there, and I don’t know where Romney’s nominees
would fall in that range. I’d say it’s
50-50 that a Romney nominee or any Republican nominee would vote to overturn Roe
I find it hard to believe that any state would ban abortion under all
circumstances, but you’d have a wide range of laws, which is basically what you
had before Roe v. Wade.
You’d have big fights, and abortion would be a big political issue on the
state level, whether it was decided by the legislature or by a ballot measure.
The debate would affect election of state legislators and the governor.
Abortion would be as big an issue on the state level as it is in most Supreme
Court nominations. It would also affect nominations and elections to state
On what the most
important Supreme Court issues will be over the next decade:
Levey: Gay marriage, clearly [is one]. I’ve been saying for
years, and we’re definitely getting closer, that there’s going to be a constitutional right to gay marriage eventually. That’s
going to be the next Roe v. Wade.
There will be additional challenges involving ObamaCare. In addition to
the [statute], there will be at least ten thousand pages of ObamaCare
regulations. We’re already fighting over the requirement that religiously
affiliated organizations provide insurance for birth control, including
abortion-inducing drugs. And that’s just the beginning. I once wrote a Wall
Street Journal op-ed anticipating what the fights over ObamaCare
regulations might be, and I think that all still holds. … I think there will be
a lot of big cases about the details and reach of the law.
Religious liberty, which is connected to ObamaCare, is a growing and unsettled
area. We’re guaranteed to have continued fights in the Supreme Court over that
issue. ... [And] one can only imagine
the legal fights that will be driven by the development of new reproductive