In McCain's Court.(The Talk of the Town)(John McCain)

Successful politicians know how to attract attention, and how to avoid it, so it's worth noting that John McCain chose to give his speech about the future of the judiciary on May 6th, a day when the political world was preoccupied with the Democratic primaries in Indiana and North Carolina. It is significant, too, that Senator McCain spoke mainly in generalities, rather than about such specific issues as abortion, affirmative action, and the death penalty. But even if he hoped to sneak the speech past a distracted public, and have its coded references deciphered only by the activists who were its primary target, its message should not be lost on anyone. McCain plans to continue, and perhaps even accelerate, George W. Bush's conservative counter-revolution at the Supreme Court.

McCain began the speech, at Wake Forest University, in Winston-Salem, North Carolina, with a paean to the wisdom of the framers of the Constitution in establishing the separation of powers. "The executive, legislative, and judicial branches are often wary of one another's excesses, and they should be," he said, before adding, in a comforting way, "The system of checks and balances rarely disappoints." Still, he warned against complacency, because "there is one great exception in our day" to the smooth functioning of the separation of powers. This is surely true: the Bush Administration has sought to expand executive power in an unprecedented manner, especially with respect to the President's ability to authorize torture, ignore the Geneva conventions, and order the surveillance of citizens.

But that was not what McCain had in mind. Instead, he pronounced that the great exception "is the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges." This, of course, is a view functionally identical to President Bush's often expressed contempt for judges who "legislate from the bench." McCain then cited what he saw as an example of such abuse. "Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the state of Missouri," he said. "As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and 'evolving standards of decency.' These meditations were in the tradition of 'penumbras,' 'emanations,' and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning."

The giveaway here was that McCain did not reveal the subject matter of this supposed judicial outrage. The case was Roper v. Simmons, in which a seventeen-year-old boy murdered a woman after breaking into her home, and was sentenced to death. Justice Anthony M. Kennedy's opinion overturned the sentence and held that the Constitution forbids the death penalty for juvenile offenders. McCain's reference to the Court's "discourse" on the law of "other nations" refers to Kennedy's observation of the "stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty." Likewise, Kennedy noted that the only other countries to execute juvenile offenders since 1990 have been China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen. According to McCain, the United States ...