A return to judicial activism
Four justices on the Supreme Court are in their mid- to late seventies now: Ruth Bader Ginsburg, Antonin Scalia, Anthony Kennedy, and Stephen Breyer. With past as prelude, we can expect any Obama nominees to be reliably liberal in the mold of his two appointments from the first term, Justices Elena Kagan and Sonia Sotomayor. At a minimum, the president will likely replace the aging liberals Ginsburg and Breyer with younger models. But it’s also possible that Kennedy or Scalia, or both, could leave the bench during the next four years, presenting Obama with an opportunity to forge a liberal majority on the Court.
An invigorated and expanded liberal bloc on the Court could undo many important precedents. The Court’s decisions, for example, protecting speech rights of corporations (Citizens United v. FEC), school choice (Zelman v. Simmons-Harris), and the right to bear arms (District of Columbia v. Heller and McDonald v. Chicago) were all decided on 5–4 votes. Challenges to Obamacare and other recent regulations are likely to present the Court with major decisions on religious liberty and federalism over the next few years.
The president’s reelection also has profound implications for the lower courts. Obama will begin his second term with about 90 vacancies to fill among 874 federal judgeships; he has already appointed 126 judges. By the time his second term is over, Obama will probably have appointed over 300 judges and may approach the 379 appointed by Bill Clinton.
Blowback
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OMG, they might uphold Obamacare.
forest on November 9, 2012 at 11:48 AM
What’s the Supreme Court?
-Americans
Kataklysmic on November 9, 2012 at 11:51 AM
LOL– Yep even our “conservative” appointed justices are hit or miss.
melle1228 on November 9, 2012 at 11:52 AM
Lets see, who could be on the list? holder, bill c, ayers, gosh the list would read as a who’s who to be about as anti-American as bho could find?
This one issue of SC Justices was a huge huge reason bho should not have be re-elected, but alas, was!
L
letget on November 9, 2012 at 11:53 AM
The courts have little to say about federalism. If the states say “screw you” there’s little the courts can do.
Long live Red state federalism!
Charlemagne on November 9, 2012 at 11:56 AM
No way man. Robert’s is a genius. He made Obama call Obamacare a tax! It was one of the great judicial finesses of all time! Plus Obamacare will be reversed on Mitt’s first day in…oh wait.
Kataklysmic on November 9, 2012 at 11:57 AM
Really?
How about having all federal monies withheld until compliance?
Mimzey on November 9, 2012 at 11:59 AM
There’s a way around that tyranny too. http://tenthamendmentcenter.com/2010/01/18/resistdc-the-federal-tax-funds-act/
Charlemagne on November 9, 2012 at 12:22 PM
Sadly true.
However, “hit or miss” (and usually hit more often) is a lot better than someone who’s a straight-line liberal on the law.
The SCOTUS is going to potentially be the scariest long-term effect of ’12.
MikeknaJ on November 9, 2012 at 12:36 PM
That doesn’t make sense. You possibly misunderstood my position.
I don’t know how pointing out the facts of the way the process seems to work at this time would make the messenger (me) “socialist”.
The facts are that the federal government does force compliance.
Mimzey on November 9, 2012 at 12:46 PM
The real takeaway from his opinion is that he states that it is not the purpose of the Supreme Court to protect us from our poor electoral skills and the legislation that results from it. If Obama fills the Supreme Court with liberals, there is precedent to say that they have little standing to repeal or render unconstitutional any legislation from a potentially conservative Congress.
He erected a roadblock to judicial activism against Congressional legislation. All judicial activism must be performed in-house on their own decisions. Then again, I suppose the whole point of judicial activism is the utter disregard for precedent when formulating decisions.
Final thought: How does one fight a foe that has total belief in the absolution of its own moral authority? There’s no way to combat a true believer on equal terms short of complete systematic dismantling of the core of their belief system.
mintycrys on November 9, 2012 at 12:49 PM
If that’s the real takeaway from his opinion that means the Chief Justice of the United States Supreme Court either A) Doesn’t understand his job; B) doesn’t understand the constitution, C) Is a coward; or D) all of the above.
None of which are very comforting.
Kataklysmic on November 9, 2012 at 12:53 PM
Thats nice.
How do you suppose that will work after one man appoints 4-5 SCOTUS judges.
That would be bad enough if the rest of the judges were constitutional conservatives. They are not. If 5 are appointed to the existing mix…game over man..game over. Nuke it from orbit. Its the only way to be sure.
Mimzey on November 9, 2012 at 12:56 PM