My closing argument for voting to reelect President Barack Obama is a familiar refrain:
The Supreme Court and the Judiciary. [...] There appears to me to be no ambiguity for progressives on the importance of the president's reelection with regard to the Supreme Court. A loss by President Obama in November would be disastrous for progressives in terms of the Court. Justice Ginsberg is a strong risk to retire. Justice Breyer is 74. If there are vacancies in the Supreme Court, President Obama will appoint much more progressive justices than will Mitt Romney, the likely Republican nominee. This issue is as clear as any before us. Add to that the appointment of judges at the appellate and trial level, for many, if not most, progressives, I would hope that this issue alone could persuade regarding the urgency of supporting the president's reelection.Any progressive who is considering not voting for President Obama need only consider this one issue. The next president will reshape a 5-4 Supreme Court. Whatever else happens in the next 4 years, nothing will have longer lasting effects. What's at risk? Women's right to control their bodies, of course. But much, much, more. In her latest column, Linda Greenhouse wrote:
Supreme Court appointments have long-lasting effects. On the current Court, Justices Scalia and Kennedy were appointed by President Reagan. Justice Thomas was appointed by President George H.W. Bush. These Justices will likely sit on the Court for more than 30 years. Policies MAY have long lasting effects. But Court appointments WILL have long lasting effects.
I’m hardly the first — in fact, this close to Election Day, I may be just about the last — to note the court’s absence from the presidential campaign. Not only haven’t the candidates talked about the court, no one has even asked them. Every time a member of the audience at the second presidential debate, the town-hall debate, got up to ask a new question, I thought that surely the court’s moment had come at last, but no. Of all the words uttered at the national party conventions, “Supreme Court” barely passed the lips of speakers at either one.I'm not as perplexed as the esteemed Ms. Greenhouse. At least not completely. Certainly Republicans in a general election campaign do not want to discuss their radical and extreme views regarding the Constitution and the Court. (Of course, in primaries, they are all "severely conservative," especially about the Court and the Constitution.) Democratic silence on the Court is less understandable, but they do polls, and they figure out what "undecided voters" care about.
My belief is that progressives should and do care deeply about the Constitution and the Court. Nonetheless, below the fold, I'll explain again why I believe it remains the most important issue of the election.
In April of this year, I wrote a post titled They Are Who We Thought They Were: The Extreme And Radical Republican Party:
Last week, E.J. Dionne wrote, "Right before our eyes, American conservatism is becoming something very different from what it once was. Yet this transformation is happening by stealth because moderates are too afraid to acknowledge what all their senses tell them." With all due respect to Dionne, who really has been good on this issue for some time, this is not a recent development. They are who we (the DFH bloggers) thought they were—a radical, extreme party intent on returning the country to a pre-New Deal state.That post was presaging my belief that the Affordable Care Act would be struck down on Lochner Era premises. My prediction was wrong as to the result, but the Lochner Era reasoning was unnecessarily included as dicta in the deciding opinion of Chief Justice Roberts. I wrote a post titled A dark cloud on this sunny day: Roberts Court embraces Constitution in Exile:
On a happy day for many of us, where the Affordable Care Act was upheld in a 5-4 decision (PDF) authored by Chief Justice John Roberts, there is a dark cloud attached. The Chief Justice accepted the federal government's argument that Congress had exercised its taxing power in enacting the mandate. But rather than being a judicial minimalist and deciding only those constitutional questions that must be decided, the Roberts Court bulled on to decide issues that need not have been addressed—whether the mandate exceeded the Congress' Commerce and Necessary and Proper power.Indeed, in a later post, I argued that the ACA decision makes President Obama's reelection more imperative than ever:
And the Roberts opinion on the scope of the national government's power to address national problems is a shot across the bow to the Supreme Court's New Deal jurisprudence that underpins our modern national government.
Jack Balkin, who in an interview with Adam Bonin and me presciently described the mandate as an exercise of the taxing power by Congress, wrote yesterday:I stand by my assessment. I hope progressives understand this and cast their vote for reelection of the president of the United States. If you care about women's rights, civil rights, economic justice, the environment, and any number of important issues, nothing is more important to the progressive cause than that.
It's hard to predict what will flow from this opinion doctrinally. If President Obama manages to appoint a majority of liberal justices in his second term, most of the innovations in this case will be forgotten. The new spending clause doctrines will be confined, and the Commerce Clause language treated as dicta or made practically irrelevant. If Mitt Romney wins, on the other hand, he may be able to appoint a strong conservative majority to work with Chief Justice Roberts. Then, in hindsight, Roberts' seemingly compromised opinion won't be very compromised at all. His apparent flip-flop won't be understood as a change of mind. Instead, his opinion may turn out, in hindsight, to be the beginning of an important transformation in constitutional law. What will happen can't be deduced from the four corners of these documents. It will depend on the Supreme Court appointments of the next decadeTranslation: There is no more important progressive project in this election year than the reelection of President Barack Obama.