The Nine [194]
But that was not what McCain had in mind. Instead, he pronounced that the great exception “is the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges.” This, of course, was a view functionally identical to President Bush’s position and a coded reference to Roe. Like many conservatives, McCain believes that abortion is a matter that should be left to elected state legislators, not unelected federal judges.
In the most curious section of the speech, McCain cited what he saw as an example of such judicial abuse. “Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the state of Missouri,” he said. “As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and ‘evolving standards of decency.’ These meditations were in the tradition of ‘penumbras,’ ‘emanations,’ and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning.”
The giveaway here was that McCain did not reveal the subject matter of this supposed judicial outrage. The case was, of course, Roper v. Simmons, in which a seventeen-year-old boy murdered a woman after breaking into her home, and was sentenced to death. Justice Kennedy’s opinion overturned the sentence and held that the Constitution forbade the death penalty for juvenile offenders. McCain’s reference to the Court’s “discourse” on the law of “other nations” referred to Kennedy’s observation of the “stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Likewise, Kennedy noted that the only other countries to execute juvenile offenders since 1990 had been China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen. According to McCain, apparently, the United States belonged on this dismal list.
McCain’s references to penumbras and emanations were not accidental. Those words came from Justice William O. Douglas’s 1965 opinion for the Court in Griswold v. Connecticut, in which the justices recognized for the first time a constitutional right to privacy, and ruled that a state could not deny married couples access to birth control. The “meaning of life” was a specific reference, too. It came from the Court’s 1992 opinion in Planned Parenthood v. Casey, which reaffirmed the central holding of Roe v. Wade and forbade the states from banning abortion. In short, this one passage in McCain’s speech amounted to a dog whistle for the right—an implicit promise that he would appoint justices who will eliminate the right to privacy, permit states to ban abortion, and allow the execution of children. But McCain did not come out and say so directly because it was politically impossible to do so.
The conservative counterrevolution had made great strides in the Republican Party, and in the Supreme Court, especially with the appointments of Roberts and Alito, but the public, it seemed, was unconvinced. So while McCain was reduced to speaking in code, there was no mystery about what he meant. With Stevens, Ginsburg, and Souter poised for retirement, McCain was promising to replace them with their ideological polar opposites. Such were the stakes of the 2008 presidential election.
On the last day of the last term before the 2008 election, the Court