Electing the Supreme Court

By DOUGLAS COHN
and ELEANOR CLIFT
WASHINGTON — The Supreme Court should be on the ballot in November because the outcome of the presidential election will have a direct impact not only on future opinions, but on the durability of decisions that have been handed down. At least three high-profile cases, each decided by a 5-4 vote, could be overturned depending on which candidate wins the White House.
Governor Romney promises to repeal the Affordable Care Act, which the Court upheld by 5-4 when Chief Justice Roberts in a surprise move voted with the liberal justices and gave them the majority. If elected president, and if he gets the opportunity to fill one or more of the nine seats on the Court, Romney would use those appointments to move the Court to the right and cement conservative control.
If President Obama wins re-election and is able to name more justices, his goal would be to bolster the liberal bloc on the Court and reinforce the appointments he made in his first term. The four liberals currently on the Court include two named by Obama (Justices Sotomayor and Kagan), and two named by President Clinton (Justices Ginsberg and Breyer).
Depending on who wins the election, the 4 to 4 deadlock on the Court could be decisively broken. In the current Court, only Justice Kennedy (appointed by President Reagan) is considered a swing vote. But his siding with the conservatives in wanting to overturn the Affordable Care Act underscores how uncertain a vote he is for liberals.
The 5-4 decisions that motivate the left in wanting to re-take the Court center on a woman’s right to choose, campaign financing, and gun control. Democrats routinely remind voters that Roe v Wade, the 1973 ruling that legalized abortion rights, is likely one vote away from being overturned. The Citizens United decision of 2010 opened the door to unlimited corporate spending on campaigns, much of which does not have to be disclosed. It has had a noticeable impact on the 2012 campaign, giving outside groups aligned with the GOP a spending advantage over Democrats.
Obama predicts that he will be the first incumbent president seeking reelection who will be outspent by his challenger.
Then there is gun control, an issue that periodically surfaces after a horrendous event like the mass shooting in the Aurora movie theatre last month. Congress is unable to find a legislative remedy with Democrats and Republicans alike unwilling to challenge the lobbying power of the National Rifle Association. The Supreme Court, acting through a pair of 5-4 decisions, one involving gun control laws in the District of Columbia, the other in the city of Chicago, affirmed an individual’s right to bear arms in accordance with the Second Amendment of the Constitution.
If there’s a lesson here, it’s that these narrowly decided 5-to-4 decisions are not sacrosanct. They can be reversed, or amended. Justice Scalia, one of the Court’s most conservative members, said in a recent Fox News interview that he could envision future restrictions on gun ownership, like banning individuals from owning rocket launchers that can take down an airplane, but he also said that as a constitutional originalist, “my starting point and ending point probably will be what limitations . . . that the society had at the time.”
He noted that in the mid-18th century there were limitations on menacing hand-held weapons such as a “head ax” that was used to terrorize people. Finding the 21stcentury analog to the head ax shouldn’t be difficult.
It’s said that the Supreme Court follows the election returns, meaning they are more likely than not to reflect the will of the people.
That will be truer than ever after this November with so many high-stakes rulings so narrowly decided that a number of them could shift with a single new justice. Published in The Messenger 8.6.12

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