Lexington

The next Supreme Court justice

Barack Obama's nominee to replace Justice John Paul Stevens will be brainy, young and controversial

NO OTHER secular document is so widely revered. Yet the precise meaning of America’s constitution is often unclear. That is why the Supreme Court, which rules on grey areas, matters so much, and why the retirement of Justice John Paul Stevens, the court’s liberal anchor, will spark such a ferocious political brawl. The court defines the boundaries of what is permissible. Does the right to free speech include a right to burn the Stars and Stripes? Justice Stevens, a veteran of the second world war, thought not. But who knows what his successor will think, about this or anything else?

Justice Stevens announced his intention to quit on April 9th. President Barack Obama is expected to nominate a replacement within weeks. Leaks suggest that he has a shortlist of about ten candidates, including a couple of big political names: Janet Napolitano, the homeland-security secretary, and Jennifer Granholm, the governor of Michigan. Most pundits, however, expect him to nominate a professional jurist. The most-mentioned names include Diane Wood and Merrick Garland, both appeals-court judges, and Elena Kagan, the solicitor-general. His nominee must be confirmed by the Senate, which should be easy, since his party has a hefty majority. In theory, Republicans could mount a filibuster, but blocking a judge is not like blocking a law. If they had successfully filibustered health reform, it would have died. But if they scuttle Mr Obama’s nominee, he will simply name another.

So the outcome is not really in doubt. Yet for both sides, the battle is of the utmost importance. For Mr Obama, it is a chance to shape American society long after he leaves office. Justice Stevens is nearly 90; his successor could be 40 years younger. For Republicans, it is a chance to make the Democrats look like bong-puffing, jihadi-hugging radicals before the mid-term elections in November. During the confirmation hearings, they will expose and exaggerate anything that the nominee has ever said that might offend a significant number of voters.

Whoever Mr Obama picks is sure to be brainy, honourable and young. He or she will also be pro-choice on abortion. Some on the shortlist would upset pro-lifers more than others, however. Judge Wood, for example, clerked for Harry Blackmun, the justice who wrote Roe v Wade, the 1973 Supreme Court decision that legalised abortion nationwide. She also voted to strike down a state law barring “partial-birth” abortions and to let aggressive protesters outside abortion clinics be pursued with racketeering laws designed to curb the mafia. Ed Whelan, a socially conservative court-watcher, says she would be “a terrible justice”. Judge Garland would be less controversial: his rulings have mostly been narrow and dry.

Ms Kagan, meanwhile, is an elusive target. Conservative academics warm to her, because she treated them fairly when she was dean of the Harvard Law School. But her decision to curb military recruiters’ access to the campus because the armed forces discriminate against gays plays badly in some quarters. And some liberals have doubts about her. If appointed, she would have to recuse herself from a large number of cases in her first year on the Supreme Court, because as solicitor-general she represented the government in their early stages. Also, her support for sweeping presidential powers in the war on terror alarms civil libertarians. And her lack of a paper trail worries others. How can Democrats be sure she is truly liberal? Republican presidents who chose “stealth” candidates with no record to shoot at have sometimes been sorely disappointed.

The nominee will of course be grilled about gays and guns. Several states have legalised gay marriage. Progressives hope and traditionalists fear that the Supreme Court will find a federal right to same-sex wedlock. Judge Wood talks of a “right not to have the state prescribe a set of acceptable spouses”. Ms Kagan calls discrimination against gays “a moral injustice of the first order”. On guns, however, Ms Kagan’s views are unknown. A bare 5-4 majority on the current court manages to impose a highly pro-gun line. So gun-lovers will watch Mr Obama’s nominee nervously, especially if he picks Harold Hongju Koh, a long-shot candidate who once gave a speech titled: “A world drowning in guns”.

Americans need protection, but from whom?

Everyone agrees that the constitution is supposed to protect the weak against the mighty. But Republicans and Democrats differ sharply as to which mighty institutions pose the greatest threat to the little guy. Democrats, by and large, think big corporations are the problem. Republicans think big government is. For example, Democrats deride the court for ruling that companies may spend as much money as they like on political ads at election time. This will allow the likes of Exxon Mobil to drown the voices of ordinary citizens, they say. Many Republicans, in contrast, applaud the court for stopping incumbent politicians using campaign-finance laws to silence critical speech about themselves.

In this instance, public opinion favours the Democratic position, while the constitution favours the Republican one. But in general Americans are warier of government than of capitalism. They may not want the Supreme Court to strike down Mr Obama’s health reforms, as some conservatives urge. But they do fret that their government is growing ever more costly and intrusive, and they fear that liberal judges will do little to restrain it even when it acts unconstitutionally. Conservatives add that, on the contrary, some judges use devious tricks to nudge the law leftward, such as citing foreign precedents, which can be cherry-picked from Europe. Mr Obama once said that his ideal judge would show “empathy” for the poor. Polls suggest that most Americans would rather their judges upheld the law dispassionately. It is a debate worth having, and it has only just begun.