Submitted by Charles Knighton
Shortly after John Roberts became Chief Justice of the US Supreme Court, he admitted concern that a steady stream of 5-4 decisions could undermine the court’s credibility and legitimacy as an institution. His fear was well-founded. Since then, the Robert’s court has issued bitterly polarized, 5-4 rulings on its most controversial cases—including gun control, voting rights, affirmative action, campaign finance law, Obamacare and gay marriage. Court observers have been almost unanimous in their estimation that these rulings simply represent the results of a mini-election on a court as nakedly partisan and polarized as the country itself—a court with four “blue” justices, four “red” ones, and one “purple” swing vote. It has become increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means, and that justices are not merely politicians clad in fine robes. This is not, one suspects, what the Founders envisioned when they created the court to arbitrate and help temper what Alexander Hamilton called the “ill humors in the society”.
It was not always thus. Until recent decades, the court’s landmark decisions often came in one-sided rulings (Brown v. Board, Loving v. Virginia were both 9-0). Presidents sometimes nominated distinguished jurists with indistinct ideologies, such as Byron White and David Souter, whose philosophies evolved over time. That hasn’t happened since Ronald Reagan appointed the court’s one “purple” justice of today, Anthony Kennedy, and it isn’t likely to happen again. For these reasons, the ideologically strident battle brewing over the replacement of recently deceased conservative justice Antonin Scalia will only serve as a harbinger of what is to come.
Many Americans, conservatives and liberals alike, view the next election as being all about the Supreme Court—and sad to say, it’s an entirely sound rationale. The court has evolved into the most powerful branch of government, making decisions that polarized voters and a gridlocked Congress and president cannot. Since justices serve for life, filling a court vacancy is now the president’s most consequential domestic decision. Depending on whether or not President Obama is successful in replacing Scalia before his term ends, the next president may replace up to four justices—and utterly reshape the court.
On Inauguration Day in 2017, Justices Ruth Bader Ginsburg and Anthony Kennedy will be in their 80s. Stephen Breyer will be 78. If a Democrat appoints replacements for all of them, the court would swing to a 6-3 liberal majority. If a Republican fills all four seats, conservatives would have a 7-2 advantage. Even if there are just two replacements, the court—and the country—will very likely take a sharp left or right turn and stay on that path for decades. The coming political fireworks should provide much entertainment.