Big quake threatens high court

 Big quake threatens high court

By LEROY GOLDMAN

Our Guest columnist

Times-News 8-2-2015

BlueRidgeNow.com

It’s not hard to imagine the contours of the bitter and divisive 2016 presidential campaign that’s coming. The Democratic nominee, probably Hillary Clinton, and the Republican nominee, probably a conservative man, will relentlessly launch salvo after salvo at each other.

The distortions, dirt and cash invested in this slugfest will disgust most Americans.

For Hillary, the principal line of attack will be aimed at energizing three demographics: women, Latinos and African-Americans. Her stealthy subliminal message will be: A Republican man in the White House ensures your continued subjugation.

For the man bearing the Republican standard, the principal line of attack will be aimed at energizing one demographic: white voters. His stealthy subliminal message will be: Had enough? Take your country back.

Neither campaign camp will talk much, if at all, about the Supreme Court. But when we get to 2024, assuming, as is likely, the 2016 winner is re-elected in 2020, it may well be that an earthquake will have occurred under the high court. Earthquakes produce catastrophic damage.

Each of the past three presidents has successfully nominated two justices to the court.

President Bill Clinton nominated Ruth Ginsburg and Stephen Breyer. President

George W. Bush nominated Samuel Alito and Chief Justice John Roberts.

President Barack Obama nominated Sonia Sotomayor and Elena Kagan. See a pattern?

Today’s court is precariously and closely balanced. To oversimplify it some, Ginsburg, Breyer, Sotomayor and Kagan are liberal. Antonin Scalia, Clarence Thomas and Alito are conservative. Roberts and Anthony Kennedy are unpredictable.

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And, although there are cases where the court’s rulings are unanimous or where the justices rule in ways that do not align neatly with their political philosophy, it is also true that, in major cases that have commanded riveting national attention, this court has frequently sorted itself out based upon political ideology.

We can see this pattern of bloc voting by the four liberals and three conservatives in eight major cases since 2012.

Three such cases involved existential challenges to Obamacare concerning the individual mandate, reproductive rights and subsidies. They were National Federation of Independent Business v. Sebelius, Burwell v. Hobby Lobby Stores Inc., and King v. Burwell.

The other five cases, all equally controversial, involved Equal Employment Opportunity and university admissions policy, Schuette v. Coalition to defend affirmative action, the Voting Rights Act, Shelby County v. Holder, congressional gerrymandering, Arizona State Legislature v. Arizona Independent Redistricting Commission, the Clean Air Act, Michigan v. EPA, Obergefell v. Hodges over same-sex marriage.

The only divergence from this repetitive pattern of liberal/conservative bloc voting in these eight cases was in Schuette, in which Breyer broke from the liberals and joined the conservatives. However, in so doing, he made it clear that he did not adopt their reasoning. Thus, his outlier vote amounted to a distinction without a difference in the basic pattern of ideological bloc voting.

It’s naïve to assume this pattern of bloc voting is random. If not, it raises the question with respect to whether these seven justices decide major cases based upon their political philosophy and then simply reason backward in their written opinions in order to disguise what amounts to an a priori opinion.

If so, the court not only undermines the legitimacy of its being, it also fosters the polarization of the process by which nominations to the court are made by the president and acted upon by the Senate.

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Regardless of what accounts for the justice’s voting behavior, you can be sure that the next president will be clear about how the court has ruled in high-profile cases, how closely balanced the current court is, and how crucial future nominations are.

Assuming the next president is re-elected in 2020, by 2024 Ginsburg will be 91, Kennedy and Scalia will be 88, and Breyer will be 86. Thus, the next president is likely to nominate at least four justices to the high court.

It’s the opportunity to recast the court in ideological concrete for decades going forward. The temptation for the next president and her/his allies in the Senate to go for broke will be irresistible. This danger of overreach is considerably more likely if Hillary Clinton is elected president and the Democrats regain control of the Senate, which is a distinct possibility in 2016. The handwriting is already on the wall.

In 2013, the Democratic Senate employed a controversial procedure known as the “nuclear option” so it could confirm all judicial and executive branch appointments, other than those to the Supreme Court, with only 51 votes rather than the 60-vote supermajority that still applies to most legislation and to nominations to the high court. Thus, expanding the nuclear option to cover nominations to the high court would be the next logical step for a Democratic Senate with Hillary Clinton in the White House.

At Georgetown University in February, Ginsburg was asked when there will be enough women on the court. She said, “When there are nine.” I’m guessing she meant nine who think and would vote like her, Sotomayor and Kagan.

Can you hear the grinding of the tectonic plates under the Supreme Court? It’s an ominous sound, one that holds the potential of eviscerating the court. If it happens, the Supreme Court will have been a willful enabler, not a bystander, of its own demise.

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