Blog from the Capital

At legaltimes.com, Tony Mauro asks a handful of constitutional experts their opinion on how a McCain or Obama presidency might affect the makeup of the Supreme Court in their field. Commenting on church-state affairs, professor Douglas Laycock predicts:

[A] McCain nominee to replace Stevens would probably supply a sixth vote to uphold government funds for religious schools, at least if distributed through mechanisms of private choice (such as vouchers), a sixth vote to permit government-sponsored religious displays (such as nativity scenes and Ten Commandments monuments), and a critical fifth vote to give government a much freer hand to open government events with prayer. An Obama nominee to replace Stevens would probably bring no change on these issues.

Baptist Joint Committee executive director Brent Walker says it this way:

Both candidates have indicated the importance of accommodating religious practice and respecting religious speech in the public square. McCain’s support for vouchers and government funding of religious entities, however, indicates he is less sympathetic to establishment clause values. Obama, on the other hand, has noted establishment clause concerns with these same policies and affirmed the role of the establishment clause in protecting individual religious liberty.

Accordingly, while both would likely appoint a successor with a robust interpretation of the free exercise clause, Obama is more likely to maintain Stevens’ bold protection of the establishment clause. McCain is less likely to do so.

Of course, the big loser in all of this speculation is Justice Stevens, who may be surprised to learn he's being replaced! I'm hearing he has no interest in moving on anytime soon.