A Supremely Important Election Issue
Supreme Court

Thanks to the Citizens United decision, unidentified super-wealthy donors will fund tens of millions of dollars worth of SuperPAC attack ads designed to distort and misrepresent the real differences between the two candidates for president.  Here is an issue, then, about which there is no room for distortion.

The next president, with just one nomination, may dramatically affect the make up of the Supreme Court.

The Bush v. Gore decision was decided 5-4.  The Citizens United decision was decided 5-4.  The Supreme Court is poised to rule, any day, on the fate of the Affordable Care Act.  That decision is likely to be a 5-4 ruling.

Consistent with what has happened throughout our politics in the last generation, the Supreme Court has become sharply polarized. There are four solid “conservatives” on the High Court, Chief Justice Roberts and Justices Scalia, Thomas and Alito.  There are four reliable “liberals” on the Court, Justices Ginsberg, Breyer, Sotomayor and Kagan.  And there is Justice Kennedy, who has taken over from retired Justice Sandra Day O’Connor as the Court’s “swing vote.”

Here is the critical data that brings this November’s presidential choice so  sharply into focus:

Justice                                                DOB/Age                                    Appointed By

CJ John Roberts                              1/27/55 (57)                              Bush II

Antonin Scalia                                 3/11/36 (76)                              Reagan

Anthony Kennedy                          7/23/36 (75)                             Reagan

Clarence Thomas                           6/23/48 (63)                            Bush I

Ruth Bader Ginsberg                     3/15/33 (79)                            Clinton

Stephen Breyer                                8/15/38 (73)                            Clinton

Samuel Alito, Jr.                               4/1/50 (62)                              Bush II

Sonia Sotomayor                             6/25/54 (57)                            Obama

Elena Kagan                                      4/28/60 (52)                           Obama


Justice. Ginsberg and Justice Breyer are both in their 70s.  Justice Ginsberg, in particular, is at risk for leaving the Court because she has had health problems over the years, including treatment for colon cancer in 1999 and for pancreatic cancer in 2009.

One more appointment by a Republican President would solidify a conservative bloc of judges so concretely as to control the most important constitutional matters in our country for a generation.  One more youthful conservative Justice, another Alito or another Thomas, and it will hardly matter what the President’s agenda is or what the Congress’ legislative programs are.

In the coming years, the Supreme Court will decide cases involving the (utterly obvious) rights of gays and lesbians to marry.  The Court will define the reaches of government authority to access private data from cellphones and internet searches.  The Court will referee the competing interests of states (such as Arizona) and the federal government in regulating and enforcing immigration laws.  The Court will tackle cases where claims of religious freedom clash with individual rights.

One more solidly conservative Justice could well mean the overturning of Roe v. Wade.

Two years ago, a poll conducted by FindLaw found that two thirds of Americans could not name even one member of the Supreme Court.  Not one.  Only one percent of those polled could name all nine Justices.  The one Justice most frequently named by those surveyed was Justice Thomas.  Good Lord!

What makes this election issue so neat, so precise is that such polls don’t matter.  Indeed, no polling really matters.  The important thing is not to be able to know the names of the Justices (although that would certainly raise ones hopes for our democracy.)  What matters is recognizing that this election really does present a very clear choice.

Look again at the list of the current Justices.   See which President appointed which Justice.  Imagine the kind of Justice a President Romney would nominate and the kind of Justice President Obama would nominate.

Call the next case!