Big quake threatens high court
By
LEROY GOLDMAN
Our Guest columnist
Times-News 8-2-2015
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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