Power of the court


During last week’s vice pres­i­den­tial de­bate, in­cum­bent Dem­o­crat Joe Biden men­tioned in pass­ing a crit­i­cal is­sue that has been largely for­got­ten in this year’s cam­paign: the power of the U.S. Supreme Court to bring fun­da­men­tal change to Amer­i­can so­ci­ety.

Mr. Biden brought up the fu­ture of the na­tion’s top court in the con­text of abor­tion and how Roe vs. Wade, the land­mark rul­ing that es­tab­lished a woman’s right to make de­ci­sions about her own body, might be over­turned by a Mitt Rom­ney nom­i­nee to the Supreme Court.

Four of the court’s nine mem­bers are in their 70s — An­to­nin Sca­lia, 76; An­thony Ken­nedy, 76; Ruth Bader Gins­burg, 79, and Ste­phen Breyer, 74. It’s a fair bet that the pres­i­den­tial nom­i­nee who wins next month will make at least one, and maybe two, ap­point­ments to the Supreme Court over the next four years.

That could change the com­plex­ion of the court for a gen­er­a­tion. It could ce­ment its con­ser­va­tive ma­jor­ity, or put the court on a more cen­trist course.

Although Mr. Biden was speak­ing to his party’s abor­tion-rights sup­port­ers, this is­sue af­fects all vot­ers. The phi­los­o­phy of Supreme Court nom­i­nees is likely to af­fect many is­sues, not just this one.

Although he has been out of of­fice for four years, Pres­i­dent George W. Bush shaped the court when he nom­i­nated Chief Justice John Rob­erts Jr., 57, and As­so­ci­ate Justice Samuel Alito, 62. Pres­i­dent Obama has also made his mark on the fu­ture with his nom­i­na­tions of As­so­ci­ate Justices So­nia So­to­mayor, 58, and Elena Kagan, 52.

Although their in­di­vid­ual de­fend­ers will deny it, ac­tiv­ist judges come in both con­ser­va­tive and lib­eral fla­vors. In the next two pres­i­den­tial de­bates, Demo­cratic, Re­pub­li­can, and in­de­pen­dent vot­ers need to hear much more from Pres­i­dent Obama and Mr. Rom­ney about what sort of justices they would name to the Supreme Court, and why.

The fu­ture of the court, which will have a pro­found ef­fect on the na­tion’s well-be­ing, is not an is­sue to be ne­glected.