For most Americans the arrival of summer means a time of relaxation. But for presidential candidates the warm weather signals the need to pick up the pace of campaigning. The nation’s political parties are preparing for their quadrennial conventions; the media are narrowing their focus to the major-party nominees; the electoral contest is now entering its climactic phase.

Ordinarily, the country’s economic prospects and foreign-policy crises provide the main themes for presidential debates. But this year—with the economy continuing to grow at a robust rate, and no foreign powers threatening American security—those themes seem less likely to capture the voters’ attention. What, then, will be the critical issues in the 2000 presidential debates?

One strong contender for the candidates’ attention will be the future of the US Supreme Court. That Court, of course, is the ultimate arbiter of American law. The President has the power to shape the future interpretation of the US Constitution by nominating new Justices to fill openings on that Court.

A President’s appointments to the Court must be approved by the US Senate. Until fairly recently, Senate debates about the qualifications of presidential nominees were decorous affairs, with the accent on the candidate’s personal credentials and his legal background; the legislators carefully camouflaged any hint of ideology. Then in 1987 the nomination of Judge Robert Bork by President Ronald Reagan precipitated a savagely partisan dispute over judicial philosophy, which ended with Judge Bork’s withdrawal. And in 1991, when President George Bush nominated Judge Clarence Thomas to the bench, the choice was approved only after another long and bitter clash. More recently, a Senate controlled by the Republican Party has quietly approved two Court appointments by Democratic President Bill Clinton. But a precedent has been set; future presidents have been placed on notice that their nominees may face stiff resistance, even if they are eminently qualified jurists.

The odds of a sharp political clash over future nominations rose sharply in June, as the Supreme Court came to the end of its 1999-2000 judicial term. Within literally a matter of hours, on the final day of that term, the Court announced a series of controversial judgments which produced sharp dissents, highlighted a deep and apparently intractable disagreement about the Court’s proper role, and left even some supporters of the Court’s majority wondering whether perhaps the Justices had gone beyond the limits of their own authority.

The church-state conundrum
The first object of controversy was the relationship between church and state. The Supreme Court upheld a federal law which provided loans for the purchase of computers to be used in church-related schools. The 5-4 decision overturned a ruling by a lower federal court, which had struck down the law, claiming that it violated the First Amendment prohibition against government “establishment” of religion. In a related case, by a 6-3 vote, the Court upheld an analogous Louisiana law allowing government purchases of instructional materials for parochial schools.

In each case, critics charged that the Court was breaching the “wall of separation” that should prevent the use of government programs for sectarian religious purposes. The Justices defended their decisions, however, by arguing that the policies they were upholding were designed to serve secular educational goals, and would not be likely to advance any religious cause.

Indeed, just a week earlier, the same Court had gone out of its way to bar church-state entanglements, ruling that Texas had violated the First Amendment by allowing students to lead prayers before football games at a public high school. The prayers were composed by individual students, and there was no hint of public compulsion for others to join in the recitation of those prayers. But the public high school provided the microphone through which the students addressed the crowd, and that electronic support, Justice John Paul Stevens wrote, “unquestionably has the purpose and creates the perception” that the school—a government entity—is promoting Christian prayer.

Chief Justice William Rehnquist—along with Justices Antonin Scalia and Clarence Thomas—dissented from the decision. The Chief Justice complained that the majority opinion “bristles with hostility to all things religious in public life.” The First Amendment, he pointed out, is intended to protect religious institutions from government manipulation—not to protect the public from religious influence.

Boy Scouts and homosexual activists
Religious institutions were also involved in a second key decision announced on June 28, the final day of the Supreme Court term. The case involved an openly homosexual man, James Dale, who had sued the Boy Scouts after being dismissed as leader of a Boy Scout troop in New Jersey. That state’s Supreme Court, citing a law against discrimination in public accommodations, had ruled last year the Boy Scouts’ ban on active homosexuals was illegal. The Boy Scouts in turn contended that their group was a private, voluntary organization, with a legal right to select its own membership. The group further argued that homosexuality is at odds with the Boy Scout code, which requires scouts and their adult leaders to be “morally straight.”

Boy Scout troops are often affiliated with local parish church groups, and officials of several major religious groups had threatened to sever their ties with the Boy Scouts of America if the Supreme Court forced the group to allow homosexuals into the ranks of leadership. In a friend-of-the-court brief, the Church of Jesus Christ of Latter-day Saints, or Mormons, said it would “withdraw from Scouting if it were compelled to accept openly homosexual Scout leaders.” The group was joined in the brief by the National Catholic Committee on Scouting, the General Commission on United Methodist Men of the United Methodist Church, the Lutheran Church-Missouri Synod, and the National Council of Young Israel. However, other religious groups—including the Unitarian Universalist Association, the General Board of Church and Society of the United Methodist Church, the United Church of Christ Board for Homeland Ministries, the Religious Action Center of Reform Judaism, and the Episcopal Diocese of Newark—expressed their support for Dale’s lawsuit.

In a closely contested (5-4) decision, the Court gave the nod to the defenders of traditional morality—or, at least, the defenders of a private group’s right to set its own standards for membership. Chief Justice Rehnquist, writing for the majority in this instance, pointed out that homosexual acts are “inconsistent with the values [the Boy Scout movement] seeks to instill” in its young members, and therefore the group has the right to dismiss leaders who are openly homosexual.

Partial-birth abortion
By far the most eagerly anticipated decision by the Supreme Court, however, involved a Nebraska law which banned the partial-birth abortion technique. The Court’s decision in this particular case would have immediate implications for 30 other states which have passed similar laws banning the same procedure. (A federal ban on partial-birth abortion has twice been passed by Congress, but in each case the measure has been thwarted by President Clinton’s veto.) Pro-life activists had been able to forge solid majorities—both in public opinion and in state legislatures —against this unusually grisly method of killing unborn children. But time after time, state laws were challenged by the abortion industry, and held up in the courts. The Supreme Court would have to decide the issue.

The Court’s decision, again settled by a bare 5-4 vote, was a crushing disappointment for pro-life forces. Writing for the majority, Justice Stephen Breyer said that the Nebraska law places an “undue burden upon a woman’s right to make an abortion decision.” The majority also criticized the Nebraska law for failing to allow a medical exception which would allow doctors to use the partial-birth abortion technique if it was the only way to safeguard the health of a pregnant woman.

The Nebraska case, Stenberg v. Carhart, brought out the most heated dissents in the recent history of the Supreme Court. Justice Clarence Thomas complained that the Court had missed an opportunity to end “this era of Court-mandated abortion on demand.”

Determined to call public attention to the true nature of the partial-birth technique, Justice Thomas continued:

In the almost 30 years since Roe, this Court has never described the various methods of aborting a second- or third-trimester fetus. From reading the majority’s sanitized description, one would think that this case involves state regulation of a widely accepted routine medical procedure. Nothing could be further from the truth. The most widely used method of abortion during this stage of pregnancy is so gruesome that its use can be traumatic even for the physicians and medical staff who perform it.

We were reassured repeatedly in Casey that not all regulations of abortion are unwarranted and that the States may express profound respect for fetal life. Under Casey, the regulation before us today should easily pass constitutional muster. But the Court’s abortion jurisprudence is a particularly virulent strain of constitutional exegesis. And so today we are told that 30 States are prohibited from banning one rarely used form of abortion that they believe to border on infanticide. It is clear that the Constitution does not compel this result.

There is no cause for anyone who believes in Casey to feel betrayed by this outcome. It has been arrived at by precisely the process Casey promised: a democratic vote by nine lawyers—not on the question whether the text of the Constitution has anything to say about this subject (it obviously does not); nor even on the question (also appropriate for lawyers) whether the legal traditions of the American people would have sustained such a limitation upon abortion (they obviously would); but upon the pure policy question whether this limitation upon abortion is “undue” i.e., goes too far.

Justice Scalia continued:
I cannot understand why those who acknowledge that . . . “the issue of abortion is one of the most contentious and controversial in contemporary American society,” persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it.

This is an area in which the court sometimes seems to be making up the law as it goes along, and in which the questions it faces have to do not just with the legal correctness of its holdings, but the legitimacy of the role it has come to play.