The Overriding Importance of the Supreme Court in This Presidential Election: Do Not Throw Away Your Vote

It is concerning to hear some supporters of Bernie Sanders say that if he is not the nominee they will not vote, or even that they will vote for Donald Trump. Whether or not we personally like a particular candidate, we must consider the power they will wield and the choices they will make. Nowhere is this clearer than in the power to appoint Supreme Court justices. If Donald Trump wins this election, it is possible, if not probable, that he will appoint several Supreme Court justices. The effects of those lifetime appointments on issues critical to our lives, including civil rights, abortion, campaign finance, affordable medical care and gun control will long outlast his tenure.

Appointing Supreme Court justices is one of the most significant presidential responsibilities, both because of the enormous power that resides in the court and the fact that they are lifetime appointments. The only way a Supreme Court justice leaves office is death, voluntary retirement or impeachment. Accordingly, while you may find presidential term limits reassuring if you don't like the person who won, their Court appointments may survive decades after their tenure. Justice Antonin Scalia served 30 years on the court until his recent death and had a tremendous impact, not the least of which was the District of Columbia v Heller decision, which is used as a powerful bulwark against gun control legislation.

The president's powers to nominate and appoint Supreme Court justices are expressly set forth in Article II of the Constitution. Likewise, Article II gives the Senate the duty of "advice and consent" with respect to the nominations. This year, we have a unique situation where the Republican majority in the Senate has refused to consider any candidate for the Supreme Court nominated by the current Democratic president. This rests on the purported basis that at the time of the Supreme Court vacancy he had only a year left in his term. There has been much discussion about whether this action is an unconstitutional refusal to provide the advice and consent required by the Constitution or, as the Republicans argue, whether such blanket refusal is properly within the parameters of advise and consent. But the effect has been to have an eight-person court for the past many months leaving the court without a tie-breaking vote and the probability that the new president will have an immediate appointment to the court.

In addition to that probable immediate appointment, the new president could easily have several other appointment opportunities given the age of certain of the justices. Three justices are over 75 and two, Justice Kennedy and Justice Ginsberg, will be over 80 when the next president takes office. If a conservative president makes the immediate appointment and has two other appointments in four years, the Court may very well reflect a reliable 6-3 conservative majority for decades to come.

In thinking about the importance of the Supreme Court, we can reflect on some of its most momentous and well-known decisions. In 1967 in Loving v. Virginia, the Supreme Court ruled that banning interracial marriage is unconstitutional. In 1973 in Roe V. Wade, the Supreme Court ruled that laws providing for a blanket ban on abortion are unconstitutional. In 1896, in Plessey v. Ferguson, the Supreme Court blessed segregation sanctioning a "separate but equal" concept that survived for 58 years until Brown v. Board of Education overruled it in 1954. In 2015, in Obergefell v. Hodges, the Supreme Court held that same sex-couples have a fundamental constitutional right to marry. This was a 5-4 decision with Justice Kennedy providing the swing vote. In 2008, the Supreme Court decided District of Columbia v Heller finding that 2nd Amendment was meant to preserve an individual right to "bear arms" and was not limited by the "well regulated militia" language that precedes that phrase in the Constitution. In 2010, the Court, by a 5-4 vote, decided Citizens United v. Federal Election Commission, transforming the landscape of moneyed interests affecting elections. These are simply a few of the more well known cases, but the Supreme Court decides cases every day that deeply affect the most fundamental aspects of our lives.

It is not a coincidence that Donald Trump took the unprecedented step of releasing a list of his potential Supreme Court nominees, all of whom are unquestionably conservative. He is trying to appeal to Republicans who want to preserve Citizens United and Heller and roll back or overturn Roe v. Wade, The Affordable Care Act, Obergefell and more.

So, when you cast your vote in the next election, please think about more than your personal regard or disregard for Hillary Clinton or Donald Trump. If Donald Trump is elected president, the Supreme Court is likely to be reliably, staunchly conservative for decades ahead. Please do not throw away your vote.