No, really, the Supreme Court matters in this election

June 24, 2008

By historical standards, Democrats have been very lucky when it comes to George W. Bush and the Supreme Court. In the modern political era, two-term presidents generally get to leave quite a mark on the high court. Truman named four justices to the court; Eisenhower had five; Kennedy/Johnson had four; Nixon had four; and Reagan had three (four if you count elevating Rehnquist to Chief).

Republicans got lucky when Clinton only had two, and then Dems were just as lucky that W. Bush only had two, as well. (Bush had none in his first term, which was a real historical fluke — and a missed opportunity given Roberts and Alito.)

With this in mind, the future of the Supreme Court will be shaped directly by the 2008 presidential election. It’s not exactly a high-profile campaign issue — it’s tough to compete with the economy, Iraq, energy policy, and healthcare — but I continue to believe it should be.

The estimable Dahlia Lithwick did a nice job setting the stage:

The composition of the high court is one of the most important issues at stake in the November election. While the justices cannot bring down gas prices or bring home the troops, their decisions in the coming years will affect just about everything else: your rights regarding privacy, reproduction, speech and religion; how to count your vote and where your kids go to school; as well as your occupational and environmental protections. You name it, they’ll decide it. Or they’ll decide not to decide it (which may be even worse).

It’s easy to convince yourself that who sits on that bench is irrelevant to you because the cases are too complicated to comprehend or too remote to affect your life. But the next president may have the chance to appoint as many as three justices — the constitutional equivalent of a royal flush.

Three isn’t an unrealistic number. John Paul Stevens is 88. Ruth Bader Ginsburg is 75 and has had health problems. Three more justices are either in their 70s or will be within the next year. Souter reportedly pines for life in New Hampshire.

Roberts, Alito, Scalia, and Thomas make up a predictable conservative voting bloc. Another vote will give the right a majority. Two more would make it easy for them.

Lithwick offers a “user’s guide” to the Supreme Court, explaining why this issue really does matter in the context of the Obama-McCain race, and why the stakes are “very high.”

[I]t’s clear there are four justices on the bench who mistrust the judiciary in the manner of a Rockette who doesn’t much care for dancing. Dissenting in this month’s enemy combatants case, Justice Antonin Scalia predicted that judicial overreaching “will almost certainly cause more Americans to be killed.” Chief Justice John Roberts added that “unelected, politically unaccountable judges” should not shape detention policy. It’s not just bad judges who should not be deciding these claims in their view. Better that no judges oversee them. One more seat at the high court filled by someone who generally believes that jurists cannot be trusted to do much more than wear ascots, will spell the difference between a coequal branch of government and a court that cheers from the bleachers. In ascots.

At the heart of the high court’s biggest debates to come — questions about the scope of privacy and claims about presidential secrecy and power — there is a deeper question about the role of courts in this country. So, when you go to the voting booth on Nov. 4, don’t think just in terms of which candidate will appoint judges who are “good for women” or “good for property rights.” That’s terribly important, but it’s half the story. For eight years the Bush administration has treated the courts almost like an enemy: meddlers and elitists who cannot understand what it means to be at war. As a consequence, we find ourselves in a country where the rule of law is reduced to an occasional luxury, like heated seats.

As you contemplate what you want your next Supreme Court to look like, ask yourself what happens when judges are sidelined — or when they’re chosen for their inclination to sideline themselves. If we really want to restore the rule of law in America, and the reputation of the United States as a land in which laws matter, we need to vote for a president who believes that we still call it a Supreme Court for a reason.

Choose wisely.

The Republicans have picked 7 of 9 Justices on the Court.

Clinton picked 2
Carter picked 0
Kennedy/Johnson judges are no longer on the Court.

As you pointed out, the odds are excellent that the next President will get to pick a Justice or two.

I fear that we already have 4 votes on the Court who really want to overturn Roe. Not just overturn it but I think that we might actually have 4 votes to treat abortion as murder and make it illegal in all 50 states. If a Scalia clone and a Thomas clone were put on the Court then there might be a 6-3 or 5-4 vote OUTLAWING abortion.

Then you could really talk about judicial activism/

  • Just a guess here, but with a Dem as president, Scalia, Roberts & Co. will suddenly think the word “supreme” is in the name Supreme Court because of it’s intended omnipotence, as well as it’s obvious omniscience and benevolence.

  • Even wildly optimistic assessments of the coming Senate makeup will make any new appointments very interesting (and provide numerous amusing flip flops from the current “up or down vote” idiocy). Not that I disagree with you, but I wonder how much we can expect.

  • It’s not just bad judges who should not be deciding these claims in their view. Better that no judges oversee them.

    What would you expect from people who despise government yet desperately want to run it?

  • Right now we have the equivalent of the bases loaded. Whoever is up to bat next could get a lot of runs.

  • Roberts, Alito, Scalia, and Thomas make up a predictable conservative voting bloc.

    I think you mean Roberts, Alito, Thomas, and Scalia: RATS.

    …Scalia, Roberts & Co. will suddenly think the word “supreme” is in the name Supreme Court because of it’s intended omnipotence… -Danp

    Well, they’d be wrong. It’s ‘supreme’ because it has tomatoes and sour cream.

  • I’d love to see Thomas and Scalia retire, but they look way too healthy for that. Unfortunately, I think we will be stuck with them for a long time, especially since they are ideologically inclined to think that they are there to save the country from liberals.

  • I would love to see more debate on this issue in the election. “Strict Constructionism” is one of the conservative philosophies that I would like to see get a stake driven through its heart by a landslide election.

    Under “strict constructionism”, not only would Roe v. Wade be overturned, but so would Griswald v. Connecticut, the case that established a Constitutional “right to privacy”. In Griswald, the Supreme Court found that it was unconstitutional for the state of Connecticut to outlaw the sale of contraceptives to married couples.

    Other cases that would have been decided differently if the standards of “strict constructionism” were applied (though the “strict constructionists” won’t admit it) include:

    Loving v. Virginia — the Supreme court went against precedent, popular public opinion and the intentions of the framers of the Constitution to find that Virginia’s law banning interracial marriage was unconstitutional.

    Brown v. the Topeka Board of Eduction — the Supreme Court found that a “separate but equal” public education system for “negros” was unconstitutional. Again. the court went against precedent, popular opinion and the intentions of the framers of the Constitution.

    But of course, the “strict constructionists” would have had no problem with Dred Scott v. Sandford, where a pre-Civil War Supreme Court found that property rights trumped human rights and allowed escaped slave Dred Scott to be returned to his master.

    I also wish Democrats would start speaking out against Justices Thomas and Scalia. Thomas pretty much votes by following the Republican party platform. Scalia is the worst sort of judicial activist — he claims to support “states rights” and uses that to oppose federal laws he doesn’t like. But if a state does something he, personally, doesn’t like — like legalizing medical marijuana or gay marriage — then his support of states rights goes out the window and he claims that a uniform federal law is necessary.

  • You’re absolutely right. With respect to the long-term interests of the country (assuming for the moment that McCain’s 100-year comment was hyperbole), nominations to the Supreme Court– and to a lesser but still very significant extent, to the federal courts of appeals– are probably the most important decisions the next president will make, even more so than the war. Stevens has made a heroic effort at holding his seat from Bush, and some judges serve into their 90s, but we simply can’t expect him to put off retirement until he’s 92, or even 96.

    This isn’t just about Roe; it’s not even primarily about Roe (FYI, it’s highly unlikely, neil, that a Court decision would declare abortion illegal; courts don’t really work that way but it could certainly open the door to an act of Congress banning abortion in all 50 states). Abortion rights are only a pretty small slice of what’s at stake here. Fourteenth Amendment rights generally– the unenumerated rights under the Due Process and Equal Protection Clauses upon which Roe and many other cases protecting fundamental liberties rely– are a larger piece of the pot and probably the most vulnerable to an ascendant conservative majority, but the Court makes decisions affecting every aspect of life from criminal procedure to securities regulation to the separation of church and state in which a conservative majority could reshape the fundamental structures of society in ways that I suspect none of us would find appealing or perhaps even recognizable. The importance of this issue cannot be overstated– I hope the vocal minority of Clinton-supporting McCain voters comes to realize that.

  • I know you just said this three minutes ago, but it already bears repeating:

    Abortion rights are only a pretty small slice of what’s at stake here. Fourteenth Amendment rights generally– the unenumerated rights under the Due Process and Equal Protection Clauses upon which Roe and many other cases protecting fundamental liberties rely– are a larger piece of the pot and probably the most vulnerable to an ascendant conservative majority, but the Court makes decisions affecting every aspect of life from criminal procedure to securities regulation to the separation of church and state in which a conservative majority could reshape the fundamental structures of society in ways that I suspect none of us would find appealing or perhaps even recognizable.

  • The issue of the Supreme Court is probably why I would have voted for Hillary if she had become the Democratic candidate. It’s not an issue I’ve thought of very often during this election cycle, but every time I do, I remember that it may be the single most important issue of this election. In addition to abortion rights, other issues like access to birth control may be at stake. In recent years, fundie pharmacists have begun denying not only Plan B to women, but in some cases basic birth control. Basic birth control, folks, is increasingly under attack and it’s been widely flying under the radar. Pharmacists and doctors are denying treatment to people based on their private religious code and I would bet dollars to donuts that this will make it to the SCOTUS in the next decade. When that happens, I do not want the RATS deciding what happens next.

    Always Hopeful, #8, thanks for my first chuckle of the morning. I’m still snickering when I re-read it.

  • I don’t see, CB, why you think this is not an issue for many people. Many of us will be concerned because of Roe and the Texas gay rights case, others who have studied more will think precisely along the lines that JRD and Maria mention.

    As for the likelihood of retirements from the younger Conservatives, there have been rumors for years that Scalia is unhappy on the bench. If he sees himself in a ‘permanent minority’ he may decide to find another way of spending his time. Thomas we are stuck with, and maybe Alito. (I still hope Roberts might be an Owen (?) Roberts and move more to the center — Roberts was the judge in the Roosevelt-era Court who suddenly began accepting the right of Government to regulate business, causing the famous line “A Switch in Time Saves Nine.”)

  • If Obama wants to get serious about the Supreme Court, he could ask Congrress to expand the number of Justices to eleven (or even more) instead of nine and appoint Justices who would firmly reinstate Constitutional principles. While there are more substantive reports on the number of Justices who have served on the Supreme Court, this is succinct enough to make the point:

    The United States Constitution does not specify the size of the Supreme Court; instead, Congress has the power to fix the number of Justices. Originally, the total number of Justices was set at six by the Judiciary Act of 1789. As the country grew geographically, the number of Justices steadily increased to correspond with the growing number of judicial circuits. The court was expanded to seven members in 1807, nine in 1837 and ten in 1863. In 1866, however, Congress wished to deny President Andrew Johnson any Supreme Court appointments, and therefore passed the Judicial Circuits Act, which provided that the next three Justices to retire would not be replaced; thus, the size of the Court would eventually reach seven by attrition. Consequently, one seat was removed in 1866 and a second in 1867. In the Circuit Judges Act of 1869, the number of Justices was again set at nine (the Chief Justice and eight Associate Justices), where it has remained ever since. President Franklin D. Roosevelt attempted to expand the Court (see Judiciary Reorganization Bill of 1937); his plan would have allowed the President to appoint one new, additional justice for every justice who reached the age of seventy but did not retire from the bench, until the Court reached a maximum size of fifteen justices. Ostensibly, this was to ease the burdens of the docket on the elderly judges, but it was widely believed that the President’s actual purpose was to add Justices who would favor his New Deal policies, which had been regularly ruled unconstitutional by the Court. This plan, referred to often as the Court Packing Plan, failed in Congress. The Court, however, moved from its opposition to Roosevelt’s New Deal programs, rendering the President’s effort moot. In any case, Roosevelt’s long tenure in the White House allowed him to appoint eight Justices to the Supreme Court (second only to George Washington) and promote one Associate Justice to Chief Justice.

    http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States

    Wouldn’t that drive the neocons and rabid rightwingers nuts!

  • There is already a conservative majority on the court.

    Justice Kennedy, a Reagan appointee, is by almost every measure conservative. In fact, he can sometimes be a bit of a “states rights” nut. The crucial distinction is that while he is philosophically conservative, he is not a right wing, authoritarian ideologue. As in Boumedienne, he will sometimes desert the hard right positions staked out by the RATS.

    Many of our cherished constitutional protections hang by this slender thread. The justices thought to be ready for retirment, Stephens, Ginsburg and Souter are in the more liberal minority (less conservative? Your state can drug test your child without probable cause thanks to Breyer). If this is the case, the next president could at best preserve the status quo. Obviously, McCain would appoint more right wingers, and the power of the rightists would grow accordingly. Would the Dem Senate cave to such an appointment? Probably. Would Obama appoint actual liberals? I doubt it. Would the Republicans in the Senate filibuster almost any Obama appointee without caving? Probably.

    How old is Justice Kennedy? Is there any indication that he might step down? Is there any way one of the RATS could be forced to step down, or maybe enticed to leave for some other powerful position? If not, there won’t be any kind of liberal majority any time soon.

  • Unfortunately, though the next president may get to pick a justice or three, it’s also worth mentioning that the right-wing bloc of justices, Roberts, Alito, Scalia, and Thomas, appear to be very entrenched with no indication of retiring soon, certainly not while a Democrat is in office. So the best that we can hope for is to maintain the status quo. It’s an entirely defensive position for a while to come.

  • It’s already very disturbing that the RATS block also consists of the youngest judges on the court. The Republicans figured out some time ago that finding very pliant conservatives when they were young, and putting them on the court whenever they could, would bring long-term benefits to their agendas — as it has.

    The next (Democratic!) president therefore may get to replace the current ready-to-retire group (especially Stevens and Ginsberg), but he will still need to think long term. The temptation to find upstanding senior judges to appoint (as the Republicans will no doubt demand) threatens the balance: as long as the RATS stay in office, (and only Scalia is over 70, being born in 1936), would risk delivering the Republican’s dream team even 8 years from now.

    Obama and the Senate therefore need to be careful not just to appoint prudent, intelligent, and progressive judges, they also need to appoint YOUNG judges. Failing to do so would risk letting the Republican’s long term strategy pay off.

    Of course, there’s always the possibility that a very long term might lead to ‘mellowing’ on the part of a justice like Alito or Roberts — but they have been chosen carefully, and I’m sure they are massaged and drawn into like-thinking circles when out of term. (I’m not expecting Scalia or Thomas to move from their current extreme positions, ever). And there’s a risk, though I hope smaller, of a progressive appointee getting more rigid as s/he aged.

    In any event: expect the Republicans in the Senate to fight, tooth-and-nail, no holds barred, filibustering to the limit, to block young judges — regardless of their exact positions — while promising to be ‘reasonable’ for potential nominees that are over 65! Watch and see if I’m right!

  • Kennedy, like Scalia, was born in 1936, making him about 72. As long as he’s the swing vote — and he will be as long as all four of the RATS block stay on the court — he will continue to enjoy the power this gives him, and consequently probably stay. Replacing Ginsberg, Souter, Breyer (who’s 70) or Stevens will not change the balance of court, but only sustain it.

    Thus, the fact that Obama could easily have 3 nominations in his FIRST term doesn’t actually mean that much: while the nominations will matter, they will not change the basic balance of the court, and of course, Roberts will remain Chief.

    Only if Kennedy or Scalia were to leave the court would Obama (and any subsequent Democratic president) have any chance to really change the court’s balance. They will both be 77 or so at the end of a first Obama term, and over 80 by the end of the 2012 presidential term, so there’s a reasonable chance, simply on actuarial grounds, that this could happen — with much better odds for the 2012 term. Likewise, anyone can encounter reasons to retire, so it’s not impossible that one of the other three RATS block members would do so, but it’s not likely.

  • —Justice Antonin Scalia predicted that judicial overreaching “will almost certainly cause more Americans to be killed.” —

    Would somebody please explain to me when Scalia became a terrorism and national security expert? His job is to interpret the Constitution, not second-guess policies he has no competence to critique. Would somebody please explain to me why no one has pointed this out to Scalia?
    Prup, don’t hold your breath on Roberts. Remember he’s the one who equated the court’s role to that of an umpire, regulating the game between Executive and Congress. Instead of three co-equall branches, he sees the court’s job as making sure both legs of a two-legged stool are the same length. The problem is, that stool still falls over.

  • To T Hurlbutt #19, what’s funny about that quote, is he’s essentially taking the opposite position (he knows everything) of Thomas (who apparently thinks judges don’t know anything).

  • jhm said: “Even wildly optimistic assessments of the coming Senate makeup will make any new appointments very interesting (and provide numerous amusing flip flops from the current “up or down vote” idiocy). Not that I disagree with you, but I wonder how much we can expect.”

    After the FISA debacle you expect much? Not during a McCan’t Presidency.

  • My guess is that Stevens is just waiting for a Dem in the White House, or the grim reaper, whichever comes first. None of the RATS is leaving. Forget that. They report only to god, and if god were smart he would call one or more of them to be close to him. Roberts and Alito were chosen partially because of their relative youth. Scalia, like Rasputin, is indestructible (except maybe by a shotgun shell from Cheney). Thomas will ride the coattails of Scalia until he’s carried out. What’s his incentive to retire?

    The most we can hope for is a solid five-member majority who aren’t monarchists. The future of the court under Obama would be decades more of 5-4 decisions.

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