ThinkProgress’s Ian Millhiser wrote a smart piece this weekend covering the ways in which Justice Antonin Scalia’s passing will affect the cases pending before the Supreme Court. Millhiser covers how the loss of Scalia’s vote will significantly affect rulings relating to labor unions, immigration, abortion, and redistricting, but there are still many more ways a shift in the court’s composition could affect future cases.
The enormity of moving the court to the left cannot be understated, which is why it would be ridiculous for President Obama to nominate a "compromise” choice, or even a supposedly moderate Republican to Scalia’s seat. A fifth liberal vote could both move the country in a more progressive direction and make it easier to elect Democrats to other levels and branches of government. It’s not hyperbole to say that the fate of the country rests on this seat.
The Supreme Court as been dominated by a mix of moderate-to-arch conservatives since the early 1970s, when Richard Nixon appointed Chief Justice Warren Burger and Justices Lewis Powell, William Rehnquist and Harry Blackmun. While the overall composition has varied, the court’s swing votes have generally been moderate conservatives such as Byron White, Sandra Day O’Connor, and the still-serving Anthony Kennedy. Not since the court of Earl Warren has a liberal majority been able to decide cases without needing to appeal to the vote of a conservative-leaning justice.
Modern American politics has largely forgotten how far the Warren Court pushed the country in a more liberal direction. The end of segregation, Miranda rights, the right to a public defender, “one person, one vote,” and the right to privacy were all thanks to a Supreme Court that defended and advanced the rights of all citizens, not just powerful ones. It’s been decades since the court has done that in any sort of consistent way.
In recent memory, the court has been a place where liberals have played defense, unless the issue happened to be one of a handful where Kennedy or another conservative held divergent views (most notably with Kennedy on gay rights and some death penalty cases). In 2012, liberals “won” a great victory by convincing one conservative to strike down only a small part of a manifestly constitutional law—the Affordable Care Act—rather than the entire thing.
If a Democratic president (be it Obama, Clinton, or Sanders) successfully appoints even a moderately liberal justice to the Supreme Court, we could enter a new era of American politics. The second decade of the Roberts Court could transform the country in ways liberals have dreamed of for years.
It’s impossible to cover all the issues that could be affected, and of course, we don’t know who will become the next Justice or how they will vote on any future cases, but here are some areas that could be in for big changes.
Death Penalty
The death penalty has been chipped away at by abolitionists for decades on multiple fronts. In a recent case over lethal injection, Justices Breyer and Ginsburg issued a lengthy attack on the death penalty itself and called for the court to address whether or not capital punishment was constitutional. While Kagan and Sotomayor did not join the dissent, they would likely join in striking down the death penalty if a fifth vote was delivered. The slow loss in popularity of the death penalty since its high-water mark in the 1990s (from 80 percent for and 16 percent against to 61 percent for and 37 percent against now) also makes abolition an easier sell.
Campaign Finance Reform
This has been discussed in some places, but mostly in reference to the more recent Citizens United decision that gave rise to super PACs. But big money was all over politics long before that case was decided. It was Buckley v. Valeo that struck down limits in campaign spending all the way back in 1976 and led to the money-churning machine modern politics has become. If the court is willing to revisit Buckley, Congress and state legislatures could pass laws limiting how much money candidates and independent groups could spend on elections. How would our elected officials spend their time if they weren’t trapped in a room making fundraising calls sixty hours a week?
This sort of ruling might not come about as quickly as some others might, but some states and localities would almost certainly pass strong campaign finance laws as soon as they were able.
Partisan Gerrymandering
Redistricting analyst Stephen Wolf has gone into detail on how a change in the court could affect current redistricting cases, and his piece is worth reading in full. One issue Wolf touched on is partisan gerrymandering. The House of Representatives, created to represent the will of the people, has locked Democrats out of power because of aggressive Republican line-drawing. If the court settled on a test that limited partisan gerrymandering, Democrats could again campaign on a level playing field for the House and for numerous state legislatures that are similarly warped. Almost every major issue facing the country today is affected by the results of partisan gerrymandering.
Environmental Regulations
The court has regularly stymied the Obama administration’s attempts to tackle climate change, just recently putting a hold on the administration’s plan to regulate coal emissions. Last year, the court blocked regulations meant to regulate pollution coming from power plants. A liberal court and a Democratic president would be able to enact strong regulations protecting our air and water and tackling climate change.
Abortion
Increasingly ridiculous and stringent regulations on abortion clinics have been passing at the state level as conservative legislatives try to create a de facto abortion ban by making it almost impossible for a woman to end a pregnancy. Having relied on the mercurial Kennedy for decades to determine which rules are okay and which aren’t, liberals could again establish a clear and definitive right to choose that would not be impacted by the state a woman lives in. Clinics would no longer have to fear being shut down at seemingly any time.
Affirmative Action and Racial Discrimination
One of Chief Justice Roberts’s most well-known lines came on the subject of affirmative action: “The way to stop discrimination on the basis of race,” he wrote, “is to stop discriminating on the basis of race.” While even your average high school student understands that racial discrimination in this country is far more complicated than Roberts’s embarrassingly naive framing, his ideas have largely ruled the court when it comes to racial issues. Affirmative action in college admissions was likely to receive its final blow this year until Scalia’s death gave it a possibly permanent reprieve. A liberal court would no longer attack the methods that the government uses to lessen the harms of racial discrimination.
Corporate Favoritism
The Roberts court is well known as one of the most pro-corporate courts in the history of the country. Numerous cases have been decided in favor of corporations at the expense of consumers and employees. While even a more liberal court is not likely to become a champion of the little guy (some pro-business cases were decided unanimously or near-unanimously), it should handle the cases more fairly and with less of an obvious pro-business bias.
And even all these only represent the proverbial tip of the legal iceberg. There are still more issues that would likely be tackled by a Supreme Court than those names here, but it would be impossible to list them all. And of course nothing is set in stone until a new justice is successfully nominated, confirmed, and we see how she or he starts voting on actual cases before the court. But a new avenue toward a more progressive America has opened, and we must do everything in our power to ensure that the next Supreme Court justice will help us get there.
