Election '08 - Supreme Court In The Balance
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  1. Presidential Candidates Finally Settled
  2. Is The Supreme Court A “Litmus Test”? Yes!
  3. The Current Make-up Of The Supreme Court
  4. Supreme Court Justices Likely To Retire Soon
  5. What Would McCain Do To The Supreme Court?
  6. Why It Is Still Important For McCain To Win
  7. Recent Landmark 5-4 Supreme Court Decisions
  8. Court Gets It Right On Gun Control, Barely
  9. McCain & Obama’s Reaction To The Gun Decision
  10. A 5-4 Supreme Court Is Better Than 6-3 Or 7-2


The next president will likely have the opportunity to nominate 2-3 Supreme Court justices, especially given the ages of the two oldest justices – John Paul Stevens and Ruth Bader Ginsburg. This week, we will discuss the current make-up of the Supreme Court and the deep divide among the liberal and conservative wings of the High Court.

We will also consider what kind of judges Senators McCain and Obama would likely nominate if they are president for the next four years. We will also look at some of the recent landmark decisions from the Supreme Court, and how the votes of Justice Anthony Kennedy are often critical.

I last wrote about the Supreme Court in October 2004, just before the presidential election with President Bush and Senator John Kerry. In that E-Letter, I suggested that some landmark decisions would likely occur during the following four years, and some of those key cases have been decided in the last month alone.

I stressed the importance of having conservative judges on the Supreme Court. It is just as important today, especially with Barack Obama being one of the most liberal Senators in history. So, this suggests we take another lose look at the Supreme Court in light of the upcoming presidential election.

Presidential Candidates Finally Settled

Following the end of the Democratic primaries, our presidential rivals are John McCain and Barack Obama, and not surprisingly Obama has proven to be the early frontrunner in the polls. Obama’s popularity among younger voters ages 18-30 will mean that millions of Americans who have never, or rarely, cast their votes will do so on November 4 for the Illinois freshman Senator.

John McCain, on the other hand, has multiple challenges to deal with if he is to have a chance to become president. McCain, age 72, is a career politician and a self-described “maverick,” meaning that he has not always voted with conservatives on key issues. Yet Obama has skillfully characterized McCain as a “third term for George W. Bush,” and President Bush is one of the most unpopular presidents of the last century.

McCain faces two difficult challenges if he is to have any chance of defeating Obama in November. First, he must somehow solidify the Republican base and get conservative voters behind him, which will be a daunting challenge. Second, McCain must somehow reach out to Democrat moderates and convince them that he is a viable alternative to Obama.

As for solidifying the Republican base, McCain faces several problems. Many conservatives may not be able to bring themselves to vote for McCain given his history of taking positions they disdain. As a result, McCain has been tracking to the right on certain issues, including reversing some of his previous positions, in an effort to solidify the GOP base.

At the same time, McCain is moving to the center-left on certain other issues in the hopes of enlightening many Hillary supporters who are having trouble getting onboard the Obama bandwagon. McCain’s centerpiece for attracting these voters is his position on the environment and global warming.

So, as you can see, McCain faces an uphill battle on several fronts, trying on the one hand to convince conservatives that he is their man, while at the same time trying to woo moderate Democrats. Obama, on the other hand, seems to have the wind at his back.

McCain’s greatest worry is that many conservatives are so disgusted that they may choose to simply sit this election out and not vote at all. Some conservatives don’t realize that a decision not to vote is, in effect, a vote for Senator Obama. Even worse, some conservatives are so upset that they have decided that the best course is to actually hold their noses and vote for Obama in November to ‘teach the Republicans a lesson.’

For conservatives who may be considering not voting at all, or voting for Obama to send a message of disgust to the GOP, I would strongly suggest that we focus our sights on the Supreme Court, and the strong likelihood that the next president will get to select at least two Supreme Court justices.

Maybe this will help get some priorities in order. Let’s start with the current make-up of the Supreme Court to see which justices are likely to retire (or die) in the next four years. Next, we will look at the latest razor-thin 5-4 Supreme Court landmark decisions which could have gone either way. And finally, let’s consider whether, in reality, it makes much difference who is in the White House for the next four years, in terms of the Supreme Court. I will argue that it does matter, and that should help clarify who conservatives should vote for in November. Let’s get started.

Gary D. Halbert, ProFutures, Inc. and Halbert Wealth Management, Inc. are not affiliated with nor do they endorse, sponsor or recommend the following product or service.

Is The Supreme Court A “Litmus Test”? Yes!

If you are a conservative, there are many things to fear about Barack Obama. He is arguably the most liberal Senator on Capitol Hill. He definitely will raise taxes; he plans to nationalize health care; he will pull our troops out of Iraq; he is soft on the military and national defense; he has no foreign policy experience; and he has ties to some very questionable characters.

If you are a liberal/moderate, there are things to fear about John McCain (although I would argue not as many as Obama, since McCain has a history of voting with the libs on certain issues). After opposing the Bush tax cuts, McCain now says he would push to make them permanent; McCain is strong on the military and is for winning the war in Iraq; McCain’s foreign policy would be more like President Bush’s, presumably; and McCain has consistently been anti-abortion.

There are plenty of reasons not to like either of these presidential candidates, regardless of your political persuasion – if both sides are intellectually honest. Obama is too liberal for some moderates, and McCain is too moderate for some conservatives.

If you are having a hard time deciding who to vote for, or whether to vote at all, might then the debate boil ultimately down to what type of judges each would appoint to the Supreme Court?

This question is certainly not a ‘litmus test’ for me, as there is no way I could vote for Obama, but perhaps it will be of help to those of you who are having trouble deciding.

The Current Makeup Of The Supreme Court

The US Supreme Court today consists of the Chief Justice and eight Associate Justices. They are currently as follows, with a brief description (listing the conservatives first):

John Roberts, Chief Justice – age 53, appointed by George W. Bush in 2005 and is generally considered to be a conservative.

Antonin Scalia, Associate Justice – age 72, appointed by Ronald Reagan in 1986 and is staunchly on the conservative side.

Clarence Thomas, Associate Justice – age 60, appointed by George H. W. Bush in 1991 and is consistently on the conservative side.

Samuel Alito, Associate Justice – age 58, appointed by George W. Bush in 2006 and is consistently on the conservative side.

The following four justices tend to rule on the liberal side of most issues.

John Paul Stevens, Associate Justice – age 88, appointed by Gerald Ford in 1975, initially thought to be a conservative, but was a moderate at best in his early years on the court and then swerved decidedly to the liberal side.

David Souter, Associate Justice – age 68, appointed by George H. W. Bush in 1990, a moderate and disappointment to conservatives, who has consistently voted on the liberal side.

Ruth Bader Ginsburg, Associate Justice – age 75, appointed by Bill Clinton in 1993, a liberal ideologue from the get-go.

Steven Breyer, Associate Justice – age 69, appointed by Bill Clinton in 1994, another liberal as we might expect coming from Clinton.

And the last Associate Justice is the usual “swing voter” on the High Court.

Anthony Kennedy, Associate Justice – age 71, appointed by Ronald Reagan in 1988, who was thought to be mildly conservative at the time, but most often leans to the liberal side as time has gone on.

So in the current Supreme Court we have four generally conservative judges - Roberts, Scalia, Thomas and Alito; four consistently liberal judges – Stevens, Souter, Ginsburg and Breyer; and one sometimes swing voter – Anthony Kennedy (often more on the liberal side).

Casual readers might tend to think it is a good idea to have the High Court so well balanced. Admittedly, there are arguments to support such a position. But as a conservative, I would argue to the contrary. I will explain more as we go along.

Supreme Court Justices Likely To Retire Soon

Supreme Court justices tend to keep their retirement thoughts and plans to themselves, so there is no way to know with certainty if any of the current justices are likely to retire over the next four years. However, it has long been believed that the justices prefer to retire when the sitting president is someone who shares their political ideology, and who is likely to appoint a like-minded replacement.

Should Barack Obama become president, it is widely believed that the two most likely justices to retire will be John Paul Stevens and Ruth Bader Ginsburg.

As noted above, Justice Stevens is now 88 years old, so it would come as no surprise if he chooses to retire next year (or certainly in the next four years) if Obama is president. Interestingly, Justice Stevens was thought to be a conservative judge when Richard Nixon appointed him to the 7th Circuit Court of Appeals in 1970, and when Gerald Ford appointed him to the Supreme Court in 1975. Yet Justice Stevens was at best a moderate on the High Court in his early years, and soon shifted to the liberal side on most issues.

Some believe that Justice Stevens is ready to retire but is waiting until President Bush is gone and someone more to the moderate/liberal side is in the White House.

The next most likely justice to retire is thought to be Ruth Bader Ginsburg, who is now 75 years old. Justice Ginsburg was diagnosed with colo-rectal cancer in 1999 and underwent surgery followed by chemotherapy and radiation treatments. While the surgery and treatments were deemed to be successful, it is unclear how long she wishes to remain on the High Court. Justice Ginsburg is widely considered to be the most liberal justice on the Court, and like Justice Stevens, she may simply be waiting until someone more liberal is in the White House.

Judging by age alone, the next most likely justices to retire over the next few years are Antonin Scalia (72) and Anthony Kennedy (71). There are those who believe that the make-up of the High Court won’t change much if Justices Stevens and Ginsburg retire (or die) during an Obama presidency, and I might agree. Obama would simply appoint two equally liberal judges.

However, if either Justice Scalia or Justice Kennedy should retire, Obama would have the opportunity to dramatically shift the balance on the High Court to the liberal side. Justice Scalia is widely considered to be the most conservative judge in the Supreme Court. If Justice Kennedy, who is considered the swing vote, is replaced with another liberal ideologue, that too would represent a significant shift on the Court.

What Would McCain Do To The Supreme Court?

Obviously, for McCain to have any significant impact on the Supreme Court, he must be elected president, which is not looking very likely at the moment. But let’s assume he wins. In order to assess his chances of changing the Supreme Court, we must first look at the Congressional landscape that is likely to be in place starting in January 2009.

Based on current polling data, the House of Representatives is likely to shift dramatically in favor of the Democrats in this year’s elections. Estimates vary, but it is expected that the Democrats will gain 12-20 seats in the House in November. If so, that will put the House make-up at something like 256 Democrats to 179 Republicans. That will be a huge shift in an already Democrat-controlled House of Representatives.

Of course, it is the Senate that approves and confirms Supreme Court nominees. There, too, the numbers don’t look good for conservatives. Based on current polling data, the Democrats are likely to gain 12-14 seats in the Senate. In that case, the Senate make-up would be something like 63 Democrats to 35 Republicans (and two Independents) starting in 2009.

Given that the Democrats will have such overpowering control of the Senate starting next year, it is unlikely that John McCain will be allowed to get any truly conservative judges on the High Court. At best, McCain might get a moderate or two on the Supreme Court.

It is not clear in the first place what kind of judges that McCain would nominate if he were president. Most would agree that McCain is not a true conservative along the lines of Ronald Reagan, so we don’t know what he would naturally want to do with regard to High Court selections. But that doesn’t matter much. In light of the Senate make-up next year, McCain won’t have many choices if he wished to get his nominees confirmed.

And it likely gets even worse. Let’s say that Justices Stevens and Ginsburg do decide to retire, even if McCain is president. With a 60+ vote control of the Senate, I can almost guarantee you that the liberals are going to demand that any liberal justices who retire must be replaced by a judge with a similar ideology. Of course, that won’t be the standard if a conservative justice retires or passes away. This is sad.

Why It Is Still Important For McCain To Win

As discussed in the Introduction, there are many reasons why conservatives should fear an Obama presidency, but none more important than the future of the Supreme Court. Given the huge shift toward the Democrats in the Senate, Obama will have carte-blanch to nominate the most liberal judges to the High Court.

Again, one might argue that if only liberal Justices Stevens and Ginsburg retire in the next few years, how much damage could Obama do? Yet there is no guarantee that only Stevens and Ginsburg will retire in the next few years. Scalia and/or Kennedy could retire or become ill or die and thus their seats would be on the table. Likewise, none of the Supreme Court justices are immune from accidents or illnesses that could incapacitate them.

Thus, I believe it is quite naïve to believe that Obama won’t be able to significantly upset the balance in the Supreme Court. And then there’s an even more chilling thought: What if Obama wins a second term as president and is in the White House until the end of 2016? In that scenario, Obama might well have the chance to nominate 4-5 Supreme Court judges!

Even if McCain is hamstrung by the liberal Senate, we would be far better off, in my opinion, with his choices for the High Court – even if they are not as conservative as we would like – than those that Obama is sure to nominate and get confirmed easily.

Recent Landmark 5-4 Supreme Court Decisions

As discussed above, the current Supreme Court often comes down to a 5-4 vote, with Justice Kennedy tipping the decisions one way or the other. In just the last month, we have seen two landmark Supreme Court decisions which are most instructive.

In a stinging rebuke to President Bush’s anti-terror policies, a deeply divided Supreme Court ruled on June 12 that foreign detainees held for years at GuantanamoBay in Cuba have the right to appeal to US civilian courts to challenge their indefinite imprisonment without charges.

Justice Anthony Kennedy was, once again, the deciding vote in the 5-4 landmark decision. Kennedy, in writing for the 5-4 High Court majority, acknowledged the terrorism threat the US faces, and the Bush administration’s justification for the detentions, but he opined: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

Conservatives were outraged that the Supreme Court would essentially open up the US court system to alleged terrorists and known enemy combatants – who are NOT US citizens! Imagine the message this decision sends to terrorists around the world. Justice Kennedy was roundly criticized for his swing vote.

President Bush said he strongly disagreed with the decision - the third time the court has repudiated him on the detainees - and suggested he might seek yet another law to keep terror suspects locked up at the prison camp, even as his presidency winds down. But this is not very likely. The Supreme Court is the final arbiter and cannot be over-ruled by the president.

Then on June 25, the Supreme Court made another bone-head decision in my opinion and that of most conservatives. Last Wednesday, in yet another 5-4 decision, the Court outlawed executions for child rapists. The State of Louisiana had sentenced Patrick Kennedy to die for brutally raping his 8-year-old step-daughter. (One expert in pediatric forensic medicine said the victim’s injuries were the most severe he had ever seen from a sexual assault. They even required emergency surgery.)

Once again, Justice Kennedy joined the liberals on the Court who ruled that despite the brutality of the crime, the death sentence violated the Eighth Amendment ban against “cruel and unusual punishment.” In its ruling, the Court suggested its decision reflected “evolving standards of decency that mark the progress of a maturing society.”

Give me a break!! In terms of naked judicial activism, one can cite few better examples than this one. How could any judge advocate leniency for a child rapist and spin it as both “decent” and “mature?” FYI, this decision was criticized by both Senator McCain and Senator Obama.

Justice Alito, noting the sweeping impact of the Court’s decision, wrote in his dissent: “The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator's prior criminal record may be.”

Before the ruling, six states allowed the death penalty for convicted child rapists. Now there are none. You can thank the liberal activists on the Court, and Justice Kennedy, for that.

Gary D. Halbert, ProFutures, Inc. and Halbert Wealth Management, Inc. are not affiliated with nor do they endorse, sponsor or recommend the following product or service.

Court Gets It Right On Gun Control, Barely

While conservatives were outraged by the Supreme Court decision on the detainees and child rapists, there are also times when Supreme Court decisions outrage liberals as well. Such a landmark decision was handed down by the High Court just last week.

On June 26, the Supreme Court ruled 5-4 in favor of gun rights. Thursday’s ruling by the High Court declared that the Second Amendment to the US Constitution provides an individual right to gun ownership. Once again, it was Justice Kennedy who delivered the deciding swing vote, this time ruling on the conservative side.

The Second Amendment, part of the Bill of the Rights, reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

The District of Columbia passed a law in 1976 effectively banning handgun ownership in city limits. Dick Heller, an armed security guard and D.C. resident, challenged the law after his handgun application was rejected. An appellate court sided with Heller, ruling that the D.C. ban on handguns was not compatible with the Second Amendment.

The issue for the Supreme Court was simply this: Does an individual U.S. citizen have a right to own a gun, or is this right only somehow linked to membership in a state militia. That issue has been settled, albeit with a dangerously slim margin.

The majority opinion in the case District of Columbia v. Heller was written by Justice Antonin Scalia, joined in by the other three most conservative justices, along with Justice Kennedy in this case. The four more liberal justices endorsed two dissents, one written by John Paul Stevens, and the other by Stephen Breyer.

This decision outraged liberals and even many moderates. Opponents argue that the right to keep and bear arms was only intended to pertain to “militias,” that the days of militias are long gone, and that the Court was vehemently wrong in its decision.

For the record, I happen to staunchly agree with the decision and must admit that Justice Kennedy’s vote surprised me, pleasantly I might add.

McCain & Obama’s Reaction To The Gun Decision

John McCain immediately praised the Supreme Court’s decision which invalidated a District of Columbia ban on handguns. The Republican presidential nominee heralded the justices’ action as “a landmark victory for Second Amendment freedom.”

Voicing a stance that could help him with both conservatives and libertarians, McCain said, “This ruling does not mark the end of our struggle against those who seek to limit the rights of law-abiding citizens. We must always remain vigilant in defense of our freedoms.”

Barack Obama, on the other hand, did another flip-flop. Obama has long advocated that local governments should be able to regulate guns (read: “gun control”). Yet in his official statement on the Supreme Court’s decision, Obama said that he “favors an individual’s right to bear arms,” but also believes the government should have the right to regulate them. Say what?

Obama issued a carefully worded statement apparently aimed at both moderate voters and his liberal base. The statement did not specifically say whether Obama agreed with overturning the specific D.C. gun ban. But he said Thursday’s ruling “will provide much-needed guidance to local jurisdictions across the country.” What is that supposed to mean? Nothing, actually.

A 5-4 Supreme Court Is Better Than 6-3 Or 7-2

In the span of just two weeks, the current Supreme Court has outraged both conservatives and liberals, with Justice Kennedy earning the ire, and praise, of both camps. Both conservatives and liberals railed against the current make-up of the High Court and the fact that landmark decisions often come down to nothing more than Justice Kennedy’s position on the issue.

While I am definitely among those conservatives that were outraged over the detainee rights decision, I would much prefer the current make-up of the Court to that which I believe we will see if Barack Obama becomes president. Perhaps the Supreme Court make-up won’t change significantly if Obama only gets to replace Justices Stevens and Ginsburg with two more liberal judges. However, if Obama gets more opportunities, the High Court could easily shift to a lop-sided 6-3 or 7-2 liberal bias, especially if any of the more conservative justices, or even Justice Kennedy, retire, fall ill, die or otherwise become incapacitated.

In closing, if you are undecided about who to vote for in the presidential election, I suggest that you focus on the implications for the Supreme Court, if nothing else. John McCain was not my choice for the GOP nominee. I don’t agree with him on several important issues. But when I consider the implications for the Supreme Court, John McCain will get my vote in November.

Please let me know if this week’s article has been helpful for you.

All the best,

Gary D. Halbert


Obama's (& the Democrats') Dry Hole (Must Read)

Where does Obama really stand on gun control? (Very interesting)

Recent Court rulings spotlight election's 'supreme' stakes.

New York Times Perspective On Justice Kennedy (Good, but I don't totally agree)


"Gary D. Halbert, ProFutures, Inc. and Halbert Wealth Management, Inc. are not affiliated with nor do they endorse, sponsor or recommend any product or service advertised herein, unless otherwise specifically noted."

Forecasts & Trends is published by ProFutures, Inc., and Gary D. Halbert is the editor of this publication. Information contained herein is taken from sources believed to be reliable, but cannot be guaranteed as to its accuracy. Opinions and recommendations herein generally reflect the judgment of Gary D. Halbert and may change at any time without written notice, and ProFutures assumes no duty to update you regarding any changes. Market opinions contained herein are intended as general observations and are not intended as specific investment advice. Any references to products offered by Halbert Wealth Management are not a solicitation for any investment. Such offer or solicitation can only be made by way of Halbert Wealth Management’s Form ADV Part II, complete disclosures regarding the product and otherwise in accordance with applicable securities laws. Readers are urged to check with their investment counselors and review all disclosures before making a decision to invest. This electronic newsletter does not constitute an offer of sales of any securities. Gary D. Halbert, ProFutures, Inc. and all affiliated companies, InvestorsInsight, their officers, directors and/or employees may or may not have investments in markets or programs mentioned herein. Securities trading is speculative and involves the potential loss of investment. Past results are not necessarily indicative of future results.

Posted 07-01-2008 12:20 PM by Gary D. Halbert