By Russell Shaw - OSV Newsweekly, 9/30/2012
Few powers and prerogatives of an American president have greater potential for long-lasting impact on the course of national affairs than the authority to nominate new justices of the Supreme Court. Neither candidate has said much about it this year, but both know very well that it’s there.
To appreciate what this presidential power means from that perspective, consider President Ronald Reagan. Reagan left office in 1989, but 23 years later, his influence on the Supreme Court is still visible in the persons of two of its most prominent members, Antonin Scalia and Anthony Kennedy, Reagan nominees who joined the court in 1986 and 1988, respectively.
There’s obviously no way of telling how many, if any, opportunities to nominate someone to the Supreme Court will come the way of the man who occupies the White House during the next four years. But it’s reasonable to suppose he’ll get the chance, perhaps more than once.
Ruth Bader Ginsburg, oldest of the court’s present members, will turn 80 next year and has been treated twice for cancer. Scalia, Kennedy and Stephen Breyer will all be 75 or older in 2013. And, depending on who is president and which justice or justices leave, the result could be a significant shift, left or right as the case might be, in the ideological leaning of Supreme Court jurisprudence for years to come.
There also is no predicting how changes in the court’s membership might affect its religious composition, which currently includes six Catholics (Scalia, Kennedy, Clarence Thomas, John Roberts, Samuel Alito, Sonia Sotomayor), three Jews (Ginsburg, Breyer, Elena Kagan), and no Protestants.
In general terms, and bearing in mind that justices can and do defy ideological stereotyping, the present ideological makeup of the court is this: liberals — Ginsburg, Breyer, Sotomayor, Kagan; conservatives — Scalia, Thomas, Roberts, Alito. For several years, Kennedy has played the role of swing vote.
But this neat pattern was disrupted last June when it was Chief Justice Roberts who did the swinging, from a four-member conservative bloc that included Kennedy to the four liberals. He thereby provided the necessary fifth vote to uphold key elements of the Affordable Care Act. Whether Roberts’ shift was permanent or short term is not clear.
Hotly contested issues
Plainly, if a Republican — Mitt Romney — is president during the next four years and a liberal justice leaves the court, the president can be expected to name a conservative jurist to replace him or her, thus creating a conservative majority. If a conservative leaves while a Democrat — Barack Obama — is president, the result will be the reverse — a liberal majority. This could matter enormously in cases involving hotly contested social issues like abortion and same-sex marriage.
A voluntary change in the court’s membership is not considered likely to happen soon enough to impact the outcome of any case the Supreme Court will consider during its 2012-2013 term, which gets underway Oct. 1 and will continue through next June.
One ruling in that time frame, court observers believe, will concern the federal Defense of Marriage Act (DOMA), which declares that for the purposes of the federal government a marriage is between one man and one woman.
While the decision is not expected to reach the question — pressed by gay rights groups as their ultimate goal — of whether the Constitution guarantees homosexuals a fundamental right to marry, what the court says now about DOMA could be crucial to its eventual disposition of the same-sex marriage question. The Obama administration has refused to defend the act in the Supreme Court.
After the term ends, one or more justices might well choose to step down for reasons of age or health. Many names are already in play when speculating about whom Obama and Romney then would nominate.
In a nonspecific way, of course, Obama has already shed ample light on that by naming two liberals, Sotomayor and Kagan.
Given another opportunity, he could be expected to select someone of the same persuasion, who presumably would vote to uphold the Supreme Court’s 1973 abortion decision, Roe v. Wade, support same-sex marriage, and stand with the liberal bloc on matters like affirmative action, capital punishment and questions pertaining to criminal law.
Obama also has indicated that, if re-elected, he might seek a constitutional amendment modifying the court’s 2010 decision in Citizens United v. Federal Election Commission that allowed virtually unlimited spending in elections by private groups like corporations and labor unions via the entities known as super PACs. Complaints about Citizens United have been a popular trope of liberal commentators in the 2012 campaign.
As for Romney, a statement on his campaign website notes that the next president “will make nominations that will shape the Supreme Court and the whole of the judiciary for decades to come.” Critcizing unnamed justices of the past said to have departed from the Constitution’s “text, structure and history,” the text cites Chief Justice Roberts and Justices Scalia, Thomas and Alito as the kind of jurists whom Romney would nominate. Romney himself has said Roe v. Wade should be overturned.
Russell Shaw is an OSV contributing editor.
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