(Sen. Hillary Rodham Clinton of New York, like her party rival for the presidential nomination, voted against confirming Roberts and Alito to the Supreme Court. Both men, she said, threatened Roe vs. Wade and the constitutional right to abortion. But she has had less to say during the campaign about the role of the courts.)
The McCain-Obama comments reflect a long-standing divide between conservatives and liberals on the role of the courts. Reduced to the simplest terms, conservatives say judges should follow the law, and liberals say they should ensure that justice is done.
Since Warren's retirement in 1969, conservatives have been ascendant in the high court, thanks to Republican domination of the White House. For the last three decades, Republican appointees have held at least seven of the Supreme Court's nine seats.
Nonetheless, McCain said he thought that "abuse of judicial authority" had continued unchecked. "The result, over many years, has been a series of judicial opinions and edicts wandering farther and farther from the clear meanings of the Constitution," McCain said recently at Wake Forest University in North Carolina.
As an example, he pointed to the Supreme Court ruling three years ago that struck down the death penalty as "cruel and unusual punishment" for murderers who were under 18 at the time of their crimes. He said the 5-4 decision in the case of Roper vs. Simmons was based on "airy constructs" such as "the evolving standards of decency."
"The result was to reduce the penalty, disregard our Constitution and brush off the standards of the people themselves and their elected representatives," McCain said.
Obama has thrown the charge of judicial activism back at Republicans.
"The nation has just witnessed how quickly settled law can change when activists judges are confirmed," he said last year. "In decisions covering employment discrimination to school integration, the Roberts-Alito Supreme Court has turned back the clock on decades of hard-fought civil rights progress."
He referred to the 5-4 decision that struck down the voluntary integration guidelines that were adopted by school boards in Seattle and Louisville, Ky. The same 5-4 majority also rejected a jury's discrimination verdict in favor of Lilly Ledbetter, a longtime manager for Goodyear Tire & Rubber Co. She showed she had been paid far less than men in the same job over many years. The court's opinion, written by Alito, said her lawsuit was flawed because she had not filed her claim within the time frame required by law.
