Rosen Downplays Fears of An 'Activist' Supreme Court in Gore Administration

At the tail end of a campaign season full of drastic warnings from several candidates on what is at stake in this election for the Supreme Court, New Republic editor Jeffrey M. Rosen '86 told an audience at the ARCO Forum that Republican warnings against an "activist" court under Al Gore '69 are unfounded.

Rosen, who strongly endorsed Gore during his talk, said that the public perception of the election's potential effects on the court is inaccurate.

"If 'judicial restraint' is defined as a deference to the legislative, then a Gore justice is likely to defer to ensure that political questions are decided in the legislature," Rosen said. "On federalism and affirmative action, a Gore justice is likely to say, 'hands-off.' Even on free speech, a Gore justice is likely to defer."

He also explained that claims from both candidates that the future of abortion hangs in the balance in this election are exaggerated.

"Focusing on the future of [Roe v. Wade] is not appropriate. A lot of ducks would have to fall into place for Roe to be overturned," Rosen said.

He instead suggested that the most important issues facing a Gore or Bush court will be the areas where the Court is narrowly divided--affirmative action and religion in schools and school vouchers.

"The [Supreme Court] is reducing the discretion of the [local] courts on affirmative action. The effect on universities in Texas and California is not a happy story," he said.

To illustrate how Republican appointees have tended to limit federal jurisdiction over the states, Rosen discussed decisions made under Chief Justice William H. Rehnquist. These rulings, which involved a narrow construction of the Interstate Commerce Clause, included overturning the Violence Against Women Act and limiting Food and Drug Administration regulation of the tobacco industry.

Rosen explained that the now-shaky foundation of federalism in the courts threatens principles in place since the New Deal.

"The fundamental question is 'Will the simple premise of the New

Deal last in the 21st century?'" Rosen said. "That's what's going to be decided tomorrow."

Rosen said that Bush-appointed justices might be more inclined to restrict the Environmental Protection Agency's power to regulate ozone-depleting chemicals.

But Rosen warned against Supreme Court social issue scare tactics, saying social issues of great importance most likely will not be dramatically affected by today's election.

Rosen ended with a final endorsement of Gore in response to a question on whether he expected the court to make a major decision on gay rights under the next administration.

"If impetus for social revolution is going to come from the courts, you better vote for Gore," he said.

The IOP was initially supposed to have a conservative speaker to counter Rosen's views, but he was the only one available for the program this evening.

Jacqueline A. Newmyer'01, a Crimson editor who worked with Rosen at The New Republic this summer, organized the discussion.

"It was an exciting evening, considering just what's at stake in the election tomorrow," she said.