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Government, Politics & Issues

As a former constitutional law professor, Obama could reshape the law

This article first appeared in the St. Louis Beacon: November 14, 2008 - Before he was a candidate for president and before he was a U.S. senator, Barack Obama was a constitutional law professor at the University of Chicago. Few presidents in the past century have entered the Oval Office with such a developed and sophisticated understanding of the Constitution and the courts.

Except for President Bill Clinton, who also taught constitutional law, no president has had Obama's grasp of the law since Woodrow Wilson and William Howard Taft.

Combine that acumen with the big political edge that Democrats enjoy in Congress and there is the possibility that Obama could have a major impact on the direction of the law and the meaning of the Constitution itself.

Obama's Possible Agenda  

Obama and a heavily Democratic Congress could mean that:

* The Supreme Court won't move further to the right in the near future. Roe vs. Wade, the decision recognizing a right to an abortion, probably won't be overruled for at least another decade, if ever. The court is not likely to significantly weaken its strong support for religious freedom, free speech and the rights of minorities.

* The Republican dominance of the federal courts, especially the all-important federal appeals courts, will begin to erode. A heavily Democratic Senate may approve judges much more liberal than those Clinton nominated.

* The legal system for trying prisoners in the war on terrorism is likely to be reformed, with the Guantanamo Bay prison closed, the least dangerous prisoners released and more dangerous ones possibly tried in federal courts.

* The Freedom of Choice Act, which codifies Roe, could become law. The bill, which is supported by Obama, would provide government funding for abortions for poor women and would wipe out state laws interfering with women exercising their right to an abortion. It also would permit abortions after viability where the woman's health is at risk.

* Unions have hopes of passing the Employee Free Choice Act, which allows employees to set up a union when half of them sign cards seeking representation. A secret ballot election would no longer be required unless 30 percent of the workers requested one. Unions claim employers use the elections to intimidate workers. Unions also can expect new pro-union appointees on the National Labor Relations Board.

* Congress could enact early voting laws that maximize the number of people who vote, conditions that often favor Democrats. This would reverse recent laws passed by GOP-controlled congresses that emphasized anti-fraud measures. Obama also promises to step up the Justice Department's enforcement of laws against voter intimidation and suppression.

* Obama promises to reinvigorate civil rights enforcement and to win passage of the Ledbetter Fair Pay Act. That law would reverse the Supreme Court's decision to throw out an equal pay suit by Lilly Ledbetter, who belatedly discovered she had received raises only a fraction of those received by male coworkers. The court said the statute of limitations began running on Ledbetter's claim the moment her employer, Goodyear Tire & Rubber Co., began discriminating against her, even though she didn't know about her lower pay until much later. 

* Congress may consider reimposing the Fairness Doctrine requiring broadcasters to air opposing views, but experts doubt the move will succeed. Speaker Nancy Pelosi indicated she favors the rule, which conservatives call the Hush Rush law because it might force stations like KMOX to balance Rush Limbaugh's ultra-conservative commentary. But Gigi B. Sohn, a consumer advocate and expert on broadcast law, said at a communications law conference in New York this week that the Fairness Doctrine is unlikely to have enough support in Congress to make a comeback.

* Congress may pass a federal law making it illegal to discriminate based on sexual orientation, as well as the Matthew Shepard Act expanding the power of the Justice Department to aid local authorities in prosecuting violent hate crimes motivated by "perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability." Where local authorities do not act, the Justice Department would be authorized to step in.

* A Federal Communications Commission controlled by Obama appointees likely would impose more public interest obligations on broadcasters, promote minority ownership of stations and foster net neutrality. Net neutrality ensures consumers Internet access without undue interference from those who control the information superhighway.

Helgi C. Walker, also speaking at the communications law meeting in New York, said it was safe to say that an Obama presidency will mean more regulation of media companies than during the Bush administration.  Walker clerked for Justice Clarence Thomas and worked in the Bush White House.

Just how liberal could the courts become?

Obama's election will not move the Supreme Court to the left, but it is likely to keep it from moving further to the right. The next likely vacancies on the court are from its more liberal wing, with possibilities including the court's senior justice, John Paul Stevens, and the court's lone woman, former ACLU attorney Ruth Bader Ginsburg. Liberal replacements for these two justices would not change the balance of the court, where the deciding vote in close cases is the moderate-to-conservative Justice Anthony Kennedy.

Supreme Court practitioner Thomas Goldstein called the election a "one-way street when it comes to the Supreme Court. ... Because the plausible retirements are all on the left ... the best case for Obama is to freeze its ideology in place," he said.

The First Amendment lawyers gathered at the yearly communications law conference in New York expressed relief that the court would not move to the right, as it likely would have under a President McCain. Paul Smith, a Washington lawyer, said than an Obama election avoided his greatest fear - that a more conservative court would limit the First Amendment to the freedoms that had been protected under common law. A common law approach would cut back on freedoms recognized in recent decades.

But with the Supreme Court deciding only about 75 cases a year -- down from 120 a few decades ago -- the composition of the federal appeals courts has an important effect on legal development.

On inauguration day, about 60 percent of the federal judges will have been appointed by Republican presidents. Ten of the 13 federal appeals courts, including the 8th Circuit in St. Louis, are controlled by judges appointed by Republicans. Nine of the 11 active judges on the 8th Circuit were appointed by Republican presidents. (Read a New York Times story from before the election.)

One example of the effect of this control was a recent 8th Circuit decision that made it harder for a citizen to persuade a judge to delay the enforcement of a law that might be unconstitutional. The appeals court said that the judiciary should pay more deference to laws passed by democratically elected bodies. (See Law Scoop discussion of the application of the new rule to a South Dakota law requiring doctors to tell women seeking an abortion that they are ending the life of a "unique, living human being.")  Obama should be able to begin quickly to move the federal courts back in the liberal direction by filling the 15 vacancies left by Bush.

A number of the legislative initiatives run the risk of losing Obama political support. Closing the unpopular Guantanamo prison could turn out to be easier said than done. Many of the 250 prisoners have been cleared for release, but the Bush administration has not been able to get other countries to take them.

In addition, Obama is reportedly considering a new system of tribunals to try some prisoners while protecting secret evidence. These trials could be conducted under military law, which would give the suspects more rights than Bush's military tribunals, but would also protect secret evidence. Many Americans wouldn't be happy with the release of Guantanamo prisoners into the United States if they are found innocent in federal court.

The Freedom of Choice Act also could cost Obama politically. The Catholic bishops and Christian talk radio have been warning about the sweep of the bill for months. The bill goes beyond codifying Roe: It would provide federal money to pay for abortions of poor women, and it would knock out state abortion regulations, including those requiring parental consent.

In addition, a major provision of the federal ban on "partial-birth" abortions would be overturned because the Freedom of Choice Act would permit an abortion after viability when the health of the mother is at risk. Current law does not have a health exception.

Even though a majority of Americans supports Roe, a majority also opposes federal funds for abortions and supports abortion regulations like parental consent and "partial-birth" abortion bans.

A more popular related initiative would be the reversal of President George W. Bush's executive order banning research using new embryonic stem cells. In addition, the Obama administration is likely to end restrictions that the Bush administration has put on the use of family planning funds internationally.

The First Amendment lawyers in New York predicted that they might have greater success passing a federal "shield law" in the new Congress and under President Obama. Obama supports the bill protecting reporters who shield confidential sources; Bush opposed it.

Even media lawyers are divided on the federal law, however. Jane E. Kirtley, a media ethics and law professor at the University of Minnesota, fears that the bill does not give adequate protection to bloggers. George Freeman, the New York Times lawyer, disagreed, saying no one cared about a bloggers' sources because they don't have them. But Kirtley said that the big showing of citizen journalists at the Republican National Convention this past summer showed that they deserved the same protection as mainstream journalists.

Eve Burton, counsel for Hearst publications, said that the federal law is needed because her company has received more than 200 subpoenas in the past two years.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. 

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