George W. Bush will leave office in January 2009 because the Constitution says presidents can serve only two terms.
But he will leave behind two Supreme Court appointees who have already had a marked affect on US life and will continue to do so for a long time to come. The Constitution says judges shall be appointed for life, and Bush’s appointees, Chief Justice John Roberts and Justice Samuel Alito, are aged 51 and 59 respectively.
The appointments have tipped the court’s balance so it now has a 5-4 majority of conservative judges over liberals.
Last week the court ended its first full annual term with the two Bush appointees on the bench. As it did it handed down several decisions which show its new direction.
It undid several decades of precedents that required desegregation of schools and it held invalid a law to control election funding that prevented corporations and others naming candidates in “issue” advertisements in the election period.
The conservative majority is not as complete or as solid as most conservatives would like, because one of the conservatives, Justice Anthony Kennedy, sometimes waters down hardline conservative views occasionally sides with the four liberals.
So conservatives are awaiting with glee and liberals are awaiting with horror the replacement of one more liberal judge and for the court to tackle the big-ticket item – abortion.
Since the 1973 decision in Roe v Wade the court has struck down state laws limiting abortion, citing the Bill of Rights clauses on privacy.
In effect, the fate of a significant amount of American life is dependant on a couple of judicial appointments.
On that score an interesting view was put at last month’s Australian Bar Association conference in Chicago by a former Court of Appeals judge and Democrat congressman, Abner Mikva. He said that he wished Roe v Wade had never been decided. He thought that legislatures in the US were coming round to liberalising abortion laws around that time anyway.
But now, he said, the only thing that stood in the way of a wholesale reversion to the bad old days of backyard abortions was one judicial appointment.
Mikva, who was legal counsel in the Clinton White House, said that even with Roe v Wade the situation was not as good for women as it was cracked up to be. He said that virtually every state now had laws prohibiting any state funding of abortions.
The Australian experience perhaps backs up Mikva’s argument. Australian legislatures saw in the 1970s that something had to be done about backyard abortions. They did not have an activist Supreme Court and a Bill of Rights to absolve them from the hard task.
So you might wonder whether a Bill of Rights is worth having. Well, we should not be put off by the American experience. The trouble in America is that its Bill of Rights is coupled with the politicisation of the judiciary and the process of judicial appointment. Further, the judges for the past half century have interpreted the Bill of Rights expansively so that judicial rulings have affected virtually every facet of American life – even down to the detail of ordering students to be bussed across towns to certain schools. That has not been the case in other countries that have Bills of Rights, notably Canada.
In the US everyone knows the political stripe of every judge. The US press routinely reports whether judges are Republican or Democrat appointees when reporting on their decisions. Professor Lee Epstein told the ABA conference that the correlation between the political party which did the appointing and the sorts of decisions made by judges is very high.
In the US, appointments to the Supreme Court have to be confirmed by the Senate. Invariably that involves a hearing at which the appointee answers questions from senators.
Epstein says that the result has been that appointees learn to become good advocates for themselves. They learn not to answer in a way that might jeopardise their appointment. Once they get to the Bench they might not behave in the way they suggest during the confirmation hearing, so the hearing achieves very little.
In Canada, which also has a Bill of Rights, you cannot tell the difference between those appointed by centre-right governments and those appointed by centre-left governments, according to Justice Rosalie Abella, a judge of the Canadian Supreme Court. She told the ABA conference that initially liberals and leftists were against a Bill of Rights because they thought the judges were too conservative and would interpret it accordingly. Now, Canadians broadly support their Bill of Rights.
In Australia, too, most of the time you would be hard pressed to know which government appointed which judge. The Howard Government has appointed five of the present seven-member High Court bench. Those appointments created nothing like the changes that have happened and are in store in the US.
The Howard Government will get to appoint at least one more High Court judge. Since a 1977 change to the Constitution, judges must retire at age 70. Justice Callinan must retire in September. Callinan was appointed by the Howard Government anyway, so big changes are unlikely. But even if Howard were to replace one of both of the remaining Labor appointees, Justice Michael Kirby or Justice Bill Gummow, it would not bring the cheering and jeering from the sidelines that has happened in the US.
And I do not think it would be any different if we had a Bill of Rights. Or even if we had a confirmation process. Our judges, and lawyers in the lead up to judicial appointment, do not, and have not had to, wear their politics on their sleeve, as in the US. Nor is the Australian judicial and legal culture such that a Bill of Rights would be as expansively interpreted.
Because of that, Australians should look more to the Canadian experience than the US experience when considering a Bill of Rights.