Supreme Court's Direction Hinges on Who Wins '08 Race

Obama said in a speech this year that the court is in agreement much of the time. But on the important constitutional issues that divide the justices, "adherence to precedent and rules of construction will only get you through 25 miles of the marathon," Obama said.

"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."

McCain mocked such standards in a speech in May on the role of the judiciary, calling them "vague words" that "attempt to justify judicial activism."

McCain said he would appoint judges "who have a proven record of strict interpretation of the Constitution of the United States."

The Judicial Confirmation Network's Long said McCain's speech offered more details than "any presidential candidate in history" about the qualities he would look for in judges. But the judiciary has not been one of McCain's areas of specialty during his long tenure in the Senate, and others describe his interest as more of an outreach to conservatives, who consider the issue very important and have had a sometimes rocky relationship with him.

When the court narrowly decided that detainees held in the military prison at Guantanamo Bay, Cuba, have the right to access federal courts, McCain called it one of the "worst decisions in history." Asked two months later what prompted such a strong denunciation, he said: "Sometimes I'm given to a little hyperbole."

Both men have ready evidence that even justices they hold up as examples do not always decide issues the way they would like. Roberts and Alito are deeply suspicious of McCain's landmark legislative accomplishment, the McCain-Feingold campaign finance reform bill, and have voted to strike parts of it as unconstitutional.

Likewise, Ginsburg and Breyer were in the majority of a case that Obama said was wrongly decided, when they struck down the death penalty for the rape of a child.

Even the charge of "judicial activism" -- which is sometimes measured by a court's readiness to overrule legislation approved by a democratic body -- is becoming harder to define. Liberals, along with Kennedy, rejected Congress's mandate on the legal options for terrorism detainees. Conservatives, along with Kennedy, set aside the District of Columbia's gun-control law.

"The parties often argue about which is the party of judicial activism and which is the party of judicial restraint," Dellinger said. "I think it's pretty much a scoreless tie."