This is for all of you who haven't voted yet, especially the diarists who have been flirting with Dr. Stein and Governor Johnson and the commenters who have been using phrases like "holding your nose" when you vote. The stakes are higher than you're acknowledging. Roe v Wade, anyone?
Paying tribute to the Kossack who uses the screen name Its the Supreme Court Stupid for the last time before the election. This time prompted by the scheduling of a conference. From Prop 8 Trial Tracker:
The Supreme Court will likely consider the Prop 8 case during its conference on November 20, when the justices will meet to decide which cases they will take up in the coming term. The case’s materials have been distributed for that conference, and the docket page for the case (now called Hollingsworth v. Perry) has been updated to include the new information.
They're
waiting to see what happens in the election: who wins the Presidency and the outcomes in Maine, Maryland and Washington state. Waiting to see. Admittedly, when t
he court that decided Dred Scott did the same thing they had already argued the case and it was a six month wait, not a three week wait. So follow me below the great orange sticky bun for some old material and some new material and a summary of why your best bet to save the Court from
a descent further into severe conservatism is the incumbent President.
As if like clockwork, Today's Los Angeles Times has an op-ed by Erwin Chemerinsky, dean of the UC Irvine law school and a supremely good Court watcher. He reminds us that a President's appointments to the high point are often his greatest and his longest-lasting achievement, and he observes that had Gore or Kerry occupied the presidency we would likely not be saddled with Heller v District of Columbia nor Citizens United. Staying within fair use, I hope, Chemerinsky reminds us of the stakes this time:
The stakes are potentially enormous. For example, Romney has expressly said that he wants to see Roe vs. Wade overturned, while everyone expects that any Obama nominees to the court would vote to affirm it and keep a constitutional right to abortion. On the current court there are four sure votes to overturn Roe: Chief Justice John G. Roberts Jr. and Justices Scalia, Clarence Thomas and Samuel A. Alito Jr. If Romney were to be president and able to replace Ginsburg or Breyer, there would be five votes to overrule Roe, and once more, women in many states would be left to choose between an unwanted pregnancy and an unsafe, illegal abortion.
On the other hand, if Obama is reelected and has the opportunity to replace, say, Scalia or Kennedy, there would be a liberal majority on the court for the first time since 1969. It is likely that these justices would reconsider Citizens United and undo the devastating effect that this decision has had on our political system in allowing unlimited corporate expenditures in elections. There surely would be a majority to allow marriage equality for gays and lesbians, though this may already exist if Kennedy is willing to join the four liberal justices in finding such a right.
He thus confirms the impact a President can have on the courst 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 in the foreseeable future.
Chemerinsky also discusses the impact a President can have on the lower courts. 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 May, was 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. Chemerinsky is equally concerned, BUT he points out that it's not necessarily permanent:
So why are the candidates ignoring this issue? Their advisors probably have told them that voters don't care, or at least that it is unlikely to matter to the crucial undecided voters. But this may well be creating a self-fulfilling prophecy because voters won't care unless the candidates choose to make the composition of the courts an important election issue.
I'm still going to conclude with Blow, who isn't as optimistic as Chemerinsky (because I'm not as optimistic either). Blow blamed the state of civic education in the country. Refreshingly, he also blamed the media for being significantly more interested in scandals than in writing about how the government works when its working (and nothing has changed in THAT arena since last April). 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 headed to conference, 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.