At the Washington Post, Paul Waldman is very, very concerned over how the next presidential election will impact the makeup of the Supreme Court. In this highly unbiased (ahem) look at the issues involved, Waldman assures us that both liberals and conservatives need to be alarmed over who gets to pick the next people to don the robes. You see, Democrats need to win so the world can be improved. And Republicans need to win so they can continue their unbridled march toward an evil empire.
Whether a Democrat or a Republican wins in 2016, he or she may well have the chance to shift the court’s ideological balance. Ginsburg is the oldest justice at 81; Antonin Scalia and Anthony Kennedy are both 78, and Stephen Breyer is 76. If the right person is elected and the right justice retires, it could be an earthquake.
Consider this scenario: Hillary Clinton becomes president in 2017, and sometime later one of the conservative justices retires. Now there would be a liberal majority on the court, a complete transformation in its balance. A court that now consistently favors those with power, whether corporations or the government, would become much more likely to rule in favor of workers, criminal defendants and those with civil rights claims. Or alternately: The Republican nominee wins, and one of the liberal justices retires. With conservatives in control not by 5-4 but 6-3, there would be a cascade of even more conservative decisions. The overturning of Roe v. Wade would be just the beginning.
Look at what the Supreme Court has done recently. It gutted the Voting Rights Act, said that corporations could have religious beliefs, simultaneously upheld and hobbled the Affordable Care Act, struck down a key part of the Defense of Marriage Act and moved toward legalizing same-sex marriage, all but outlawed affirmative action, gave corporations and wealthy individuals the ability to dominate elections and created an individual right to own guns — and that’s just in the last few years.
I’m not sure if we’re reading a political editorial or a leaked screenplay for M. Night Shyamalan’s next movie. Something like… 28 Days of Conservative Decapitation.
I would argue that considerations about who nominates the next candidates for the Supreme Court are absolutely a valid concern for the upcoming campaign. But it’s always a consideration. Saying that this particular race is the most important election of our lifetime is a phrase which could probably be found in multiple newspapers from 1812. Whether it is Hillary Clinton or [INSERT RANDOM GOP NAME HERE] who fills up three slots on the bench after 2017, the court will change. And it will change yet again in the decades to follow. Is it important? Obviously it is. The decisions made by the court echo down the corridors of the legal system long after the individual justices are dead and gone.
But is it a “campaign issue” as such? I don’t think so. There’s really nothing specific to run on other than the generic hope that “our guy or gal wins” so they nominate “somebody who thinks like we do.” Winding up your base on the premise of staffing up the Supreme Court is the equivalent of telling them that they need to go out and vote because it would be really great if we won. And the party of the president doing the nominating is no assurance of anything anyway. Kennedy was put in place by Reagan, and how did that work out? Has John Roberts been everything you thought he would be? Similar cases can be found without excessive effort.
The real question now, at least as I see it, is if the three oldest justices will remain both physically well and interested enough to finish out two more years. If we have an opening at any point during that period the government will essentially grind to a halt. It will be war on the Hill and it will not be pretty.