Thus far the Presidential campaign has been composed around two central themes; the war in Iraq and terrorism as the dominant melody with the economy sounded as a second theme. The President has avoided divisive appeals to his social conservative base preferring to avoid alienating the middle in this razor close election. For his part Senator Kerry has fought the battle where the President took it, not wishing to help the President energize the religious right by putting the social issues of abortion; equal rights for gay Americans; and civil rights for minority Americans at the center of the political battlefield. Justice Rehnquist’s serious condition throws all that planning out the window.

The Bill of Rights, so often the source of the extension of the citizens’ right to be free of government intrusion as the Court applied two centuries of judicial interpretation to new problems in 5 to 4 decisions, is thrust into the center of the fray as the Chief Justice clings to life fighting cancer. No matter what the outcome of his battle in the short run it means that the 5 to 4 majority that awarded the Presidency to George Bush in 2000 has been broken by his medical incapacity. In the long term it focuses attention on the age and health of at least four other members of the court whose terms will likely end in the next four years.

Whether President Bush wins re-election next Tuesday or John Kerry begins a new administration on January 20th, the next President will have the opportunity to shape the majority of the Supreme Court for a generation. It is not just an academic exercise for political philosophers. The decisions of our Supreme Court shape our everyday lives as they define the relationship of government and citizen. Brown vs. Board of Education; Rowe vs. Wade; and Miranda vs. Arizona are all examples of cases decided by the Court which have reshaped American life in the last century just as Plessy v. Ferguson had legitimized de jure inequality in the previous century.

The Chief Justice’s illness thrusts the issue of the selection of Federal judges center stage in the last week of this election campaign. The question is whether individual liberty will be extended or will the right of the citizen to be free from government intrusion in the most basic aspects of life continue to recede? That is a Supreme choice facing voters next Tuesday and their decision will shape American life for generations to come.