John McCain and Barack Obama have set out sharply contrasting views on the role of the Supreme Court and the kind of justices they would appoint.
It is not just a theoretical policy debate.
Whoever is elected in November will probably have the chance to appoint at least one justice in the next presidential term. The court's two most liberal justices are its oldest: John Paul Stevens turned 88 last month, and Ruth Bader Ginsburg is 75.
McCain has promised that, if elected, he would follow President Bush's model in choosing Chief Justice John Roberts Jr. and Justice Samuel Alito Jr.
That could establish a large conservative majority on the court for years. With conservatives in full control, the court would probably overturn Roe vs. Wade and the national right to have an abortion. The justices also could give religion a greater role in government and the schools, and block the move toward same-sex marriage.
If elected, Obama would be hard-pressed to create a truly liberal court. But by replacing the aging liberal justices with liberals, he could preserve abortion rights and maintain a strict separation of church and state.
McCain recently echoed the views of conservatives who say "judicial activism" is the central problem facing the judiciary. He called it the "common and systematic abuse … by an elite group … we entrust with judicial power." He criticized the California Supreme Court for giving gays and lesbians the right to marry, saying he doesn't "believe judges should be making these decisions."
Obama said he is most concerned about a conservative court that tilted to the side of "the powerful against the powerless," and to corporations and the government against individuals. "What's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves," he said in response to McCain.
During one campaign stop, Obama spoke admiringly of Chief Justice Earl Warren, the former California governor who led the court in the 1950s and '60s, when it struck down racial segregation and championed the cause of civil rights.
Obama has also praised current Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter. "I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through," Obama said.
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.
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.
The Ledbetter case illustrates the difference between Obama and McCain when it comes to judges. Obama sharply criticized the decision, saying the conservative justices ignored new discrimination she suffered with each unfairly low paycheck. McCain defended the decision and called it a defeat for trial lawyers who sought to sue companies.
Before his election to the Senate, Obama taught constitutional law at the University of Chicago. He said most cases, even those at the high court, could be decided by looking at the law and precedents.
"Both a (conservative Justice Antonin) Scalia and a Ginsburg will arrive at the same place most of the time," he said during the Roberts confirmation hearings. "What matters at the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction will only get you through 25 miles of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy.
"In those difficult cases, the critical ingredient is supplied by what is in the judge's heart."
In a speech this month, McCain derisively quoted Obama's reference to a judge's "deepest values" and "empathy." "These vague words attempt to justify judicial activism," McCain said. "Come to think, they sound like an activist judge wrote them."