July 09, 2004

Willy T: Supreme Court Decisions Avoid Electoral Impact

The Pledge of Allegiance case, Newdow v. Elk Gove, had the potential to cut across party lines by splitting strong separationists from those who are less enthusiastic about the establishment clause jurisprudence of late. Although a ruling against the Pledge might plausibly have received heavy criticism from Kerry, it's much more likely that Bush could have used the fallout to his advantage, and perhaps suggested a constitutional amendment to fix the ruling. By ducking the issue and ruling on standing, the liberals on the Court successfully prevented Bush from campaigning on the issue.

The Cheney energy case could have also posed some serious problems for the Administration, had the Supreme Court not remanded the issue to the lower court that will certainly not decide the matter until after the election. Apart from the very interesting VP race shake-up that might have ensued if embarrassing information had emerged about Cheney, there might also have been some some very fertile ground for Kerry to emphasize the reliance of the Administration on big corporations, and their reliance in turn, on the Administration. And might I say, apart from all of the election issues, that the uproar about Scalia's denial of the recusal request was so misguided and ignorant as to fail the laugh test.

Of course, the decisions with the biggest potential impact on the election were the terrorism cases decided in the last week of the term--Hamdi, Padilla, and Rasul/Al Odah. When these cases came down on June 28th, the media reports mostly stated that the Administration had suffered a big defeat. Fine. But the defeat will be long forgotten by Novemeber in the minds of most voters. The habeas rights of enemy combatants, both U.S. citizens and Gitmo detainees, was much more sexy for law geeks than ordinary people/voters. Very few people will see these decisions in Novemeber as having weakened Bush to the point where he loses votes against Kerry.

So while the Court did perhaps have some potential to the affect the November election, its ducks and dodges, along with its decisions in complicated terrorism cases, will probably have no effect on the 2004 presidential race.