[This column was originally published by Truthdig.com]
Antonin Scalia's death in February has put the Supreme Court's future up for grabs in the presidential election. The next occupant of the Oval Office will have the power to reshape the nation's highest judicial body, and with it the ability to redefine the meaning and application of the Constitution, not just for the next four or eight years, but for a generation or more.
In my last Truthdig column, I examined the impact a Trump or Clinton presidency could have on the court in light of the public positions each candidate has taken on major constitutional issues. I also provided some commentary on the kinds of people Donald Trump or Hillary Clinton might nominate to succeed Scalia and three other elderly justices--Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer--who are all at least 78 years old and nearing retirement.
To restate the gist of the column: Trump would be a catastrophe, seeking to set back the constitutional clock in a wide range of areas, from environmental protection and First Amendment freedoms to abortion rights. Clinton, for all her duplicities, coziness to Wall Street and foreign-policy hawkishness, is clearly the lesser evil of the pair.
Nothing said in Sunday's second presidential debate, which touched ever so briefly on the court, has changed my perspective. Trump as chief executive would move the court sharply to the right, appointing justices "in the mold of Scalia." Clinton would guide it moderately to the center-left.
But Trump and Clinton aren't the only hopefuls in the race. Gary Johnson, the Libertarian Party nominee, and Jill Stein of the Green Party, are also campaigning. They have announced positions on the court, and their views merit our attention, even if neither has the slightest chance of winning in November.
Here, then, is my take on what the third-party standard-bearers have to offer, with my conclusion first and analysis afterward:
1. Gary Johnson is--and I say this with a deep breath and only after careful reflection--almost as ignorant about the work of the court and constitutional law as Trump. He would be an embarrassment to the country as well as a danger overall to progressive values were he ever to wield the judicial appointment authority of the presidency under Article II, Section 2 of the Constitution.
2. Jill Stein, by contrast, has articulated a consistently progressive stance on the court and the questions and cases that will likely come before it in the next decade. Her positions are more expansive than those embraced by Bernie Sanders. She suffers, however, from even more diminutive poll numbers than Johnson, registering a scant 2 percent to 3 percent of voter support in recent national surveys.
Now for the analysis, starting with Johnson.
To the extent that the former Republican governor of New Mexico has talked about the Supreme Court and whom he would elevate in the wake of Scalia's demise, his ideas have been vague, erratic and at times vacuous. Equally important, what he's said on the subject has conflicted with the views expressed by his Libertarian running mate, former Republican Massachusetts Gov. William Weld.
Johnson and Weld appeared together for an interview on ReasonTV this past July, during which they were asked by reporter Nick Gillespie about the kind of jurist who should succeed Scalia.
Weld answered that "Stephen Breyer has been a good justice. He was appointed by Democrats." Weld also opined that President Obama's current nominee--Merrick Garland, the presiding judge of the federal District of Columbia Circuit Court of Appeals--"was a good pick."
Johnson fumbled his response, saying that he would impose no "litmus test" for his Supreme Court choices, but that any of his nominees would have to adhere to Scalia's philosophy of "original intent" for interpreting the meaning of the Constitution.
Perusing the July interview, or for that matter the recorded Q&A conducted a month later by Townhall's Guy Benson, it's unclear that Johnson has the foggiest idea what "original intent" means as a judicial methodology.
Not that it takes a rocket scientist to grasp the doctrine's fundamentals. In its initial iteration--as popularized by such legal luminaries as the now-deceased federal appellate judge Robert Bork--the theory held that the Constitution should be interpreted according to the actual intentions of the framers. Bork, who was nominated by President Reagan in 1987, never made it to the high bench. His appointment was rejected after a raucous Judiciary Committee hearing by the full Senate on a vote of 58-42.
In its current, more refined version, originalism urges judges to interpret the Constitution, not so much in line with the framers' intent (which some proponents acknowledge is unknowable), but according to the "original meaning" of the terms contained in the document's text--that is, according to the general definitions of the words used in the Constitution at the time of its ratification. This is the technique Scalia was said to have employed when he penned his majority decision in District of Columbia v. Heller, holding for the first time in 2008 that the Second Amendment protects an individual's right to own and bear firearms apart from service in state militia.
Proponents of the "original meaning" school like Scalia argue that such an approach to judicial decision-making guards against both subjectivism and activism.
In truth, of course, originalism is a sham, promoting its own strain of subjective judicial judgments and partisan outcomes. Consider, for example, in addition to Heller, the sweeping breadth of such recent sea-changing Supreme Court rulings as Bush v. Gore on the 2000 presidential election, Citizens United v. FEC on campaign finance, and Shelby County v. Holder, which gutted the Voting Rights Act.
When it comes to constitutional theory, originalist or otherwise, Gary Johnson hasn't a clue. Indeed, in his Townhall interview, he spoke strongly against the Supreme Court's 5-4 ruling in a 2005 eminent domain case (Kelo v. City of New London) as illustrative of the kind of court opinions he doesn't like. But he didn't appear to know how the then-members of the court had voted on the case.
Similarly, in the Townhall interview, Johnson took conflicting positions on abortion rights, ultimately saying that abortion curbs should be left to the states. He also seemed confused on the hot-button question of "religious liberty" and discrimination by business owners against the LGBT community, and he was unable to explain how Indiana's Religious Freedom Restoration Act (RFRA), which he condemned, differed from the New Mexico RFRA, which he had signed into law in 2000.
Whether Johnson's poor performance in the Reason and Townhall sessions were "Aleppo" moments of memory failure under the klieg lights, he has espoused a number of other well-considered positions on the big legal issues of our times.
On the plus side, he favors legalization of marijuana, and, most recently, called for pardoning NSA whistle-blower Edward Snowden. He also recently declared his opposition to the death penalty, although as governor in 2001 he permitted New Mexico's only execution since 1976 to proceed. The state abolished capital punishment in 2009, after Johnson had left office.
However, Johnson's negatives vastly outweigh his positives. As noted by Mother Jones blogger Kevin Drum in a Sept. 17 post, Johnson supports the Trans-Pacific Partnership and fracking. He wants to abolish student loans and thinks Citizens United "is great."
He opposes net neutrality, affirmative action and gun control, and any type of paid maternity or medical leave. He's against all forms of national health insurance, wants to raise the Social Security retirement age to 75, abolish the EPA and repeal the federal income tax.
He is also against any increase in the minimum wage in keeping with strict anti-New Deal libertarian canon. Truly faithful libertarians call for a return to the early 20th-century era of "freedom of contract," during which the Supreme Court issued such infamous anti-labor decisions as Lochner v. New York and Adkins v. Children's Hospital, striking down maximum-hour and minimum-wage legislation.
Jill Stein offers a mirror image of all that is regressive in Johnson's legal outlook. Among other positions, as cataloged by the website OnTheIssues.org, she has condemned the current religious freedom movement as a "surrogate for patriarchal domination," and has called for strict workplace and housing equality without regard to gender identification.
Stein supports abortion rights, pay equity, the Black Lives Matter movement and ending mass incarceration.
Like Johnson, she has called for the decriminalization of drug use, abolition of the death penalty and a pardon for Edward Snowden.
Unlike Johnson, however, she wants to overturn Citizens United, declaring that "corporations are not people and should not be allowed to finance political campaigns." In further contrast to Johnson, she opposes raising the retirement age for Social Security and supports affirmative action and gun control.
To combat economic inequality, Stein wants to go beyond minimum wage legislation, calling on Congress to enact "living wage" mandates. In fact, she wants guaranteed jobs for all who want to work, and full conversion to green energy by 2030 to counteract climate change (which, unlike Johnson, she believes is real and man-made).
When it comes to the Supreme Court, although she thinks Merrick Garland should get a Senate hearing, she would appoint justices committed to reversing Citizens United. She was, moreover, sharply critical of the court for deadlocking 4-4 last term on a crucial appeal (United States v. Texas) dealing with President Obama's delayed deportation programs.
Of all the presidential candidates, Stein would do the most to influence the court to move in a consistently progressive direction. But of all the candidates, she has the least prospect of doing so. And therein lies a sobering but undeniable reality about the state of American law and politics in the second decade of the 21st century.