So Thursday's New York Times, in advance of the ACA decision, presents an article, "Future of an Aging Court Raises Stakes of Presidential Vote." This time, the issue is Justice Ginsberg, who is 79 and looking increasingly frail. With the 5-4 situation that exists now, yes, it matters who gets to replace her.
The winner of the race for president will inherit a group of justices who frequently split 5 to 4 along ideological lines. That suggests that the next president could have a powerful impact if he gets to replace a justice of the opposing side. “This election could shape the court for decades to come,” said Nan Aron, president of the Alliance for Justice, a liberal advocacy group.
It's almost two months since my last diary about this, but this seems to be a really good time for the reminder.
This time, the cautionary tale is Justice Thurgood Marshall, who held on as long as he could, but retired at the age of 82, in time for Bush 41 to replace him with Clarence Thomas. And now, the material I've used in the last two diaries with a somewhat different and more urgent conclusion.
A 2008 study found that four of the five most conservative judges of the 43 who have populated the court since 1937 sit on the Supreme Court bench right now (yes, Clarence Thomas is #1), and the swing vote on the Court, Anthony Kennedy, is TENTH (as in actually conservative, but with principles). The two most likely judges to retire between 2012 and 2016 are Kennedy and Ruth Bader Ginsberg, which means a 6-3 conservative majority if a Republican is president for the foreseeable future. Blow points out that Antonin Scalia is likely to retire as well, but if a Republican is elected, he'll be replaced with someone ideologically similar (and Romney has said as much).
The feeder courts are also fairly depleted. As Dahlia Lithwick wrote in the January/February 2012 issue of the Washington Monthly:
Republicans have used Senate rules so effectively to block Obama judges that the judicial vacancy rate currently stands at eighty-four vacancies, with thirty of those designated “judicial emergencies” based on courts’ inability to manage caseloads. Filibusters, holds, and other arcane Senate rules have brought the system to the point where civil litigants may wait years to get into court. And the unprecedented waste of time that results from GOP obstruction of Obama judges has led some of the most interesting and thoughtful jurists, most famously California’s Goodwin Liu, to withdraw their names from contention.
Charles Blow, writing in April, is concerned that Americans
simply don't understand the stakes.
In a November Pew Center News IQ survey, just under half of all respondents (47 percent) correctly identified Chief Justice John G. Roberts as a conservative. And that lack of understanding wasn’t isolated to the less educated. Only 60 percent of those with a college degree got it right.
He also cites (and links to)
a Pew Research Center poll and
a Gallup poll that show people's opinions of the Court dropping, and for the wrong reasons.
Blow blames the state of civic education in the country. Refreshingly, he also blames the media for being significantly more interested in scandals than in writing about how the government works when its working. He closes by writing
There is little ambiguity here. Which of these two men will pick the next justice is of grave significance. This — like budgetary priorities and economic stewardship, concern for the earth and the air, and a candidate’s penchants for war and appetite for peace — should be on the lips of every pundit and in the minds of every concerned citizen.
We don’t get a do-over.
No, we don't. After Heller v District of Columbia, which discarded 200 years of precedent, and after Citizens United, which demonstrated that what the conservative majority on the court was doing wasn't so much reasoned legal work as activism,
this is no longer a hypothetical, and now, since we're seeing the impact of Citizens United, it's even worse than we thought, and it might be even worse a few hours after this posts. President Obama offers the
best only alternative for making the courts even more progressive than they are now, especially when we elect
more and better Democrats to the Senate. With the DOMA cases on their way to the Court, we CANNOT sit on our hands.
IT'S THE SUPREME COURT STUPID! Whatever you think, Obama MUST be reelected, because, as James Fallows said, the effects of the coup are still in abeyance.
I'll be in and out on this one, but I'll be able to pay full attention by 1 PM.
10:33 AM PT: Good news about ACA doesn't make this any less important as a reason to vote for a Democratic president (and thanks for the rec list).