The 2016 Presidential Election is about the United States' path for the next 25 years on both cultural and economic grounds: will the country continue to move on a progressive track protected by a liberal Supreme Court, or seesaw back to an earlier conservative path?
Much has been written about the fact that the United States Supreme Court has only eight current justices following the unexpected death of Antonin Scalia. However, the importance of this election to the future of the court goes far beyond just that seat.
There are three critical factors regarding the future of the court that this election is likely to decide.
1) The replacement for Justice Scalia: this replacement justice will tip the balance of the court. Currently the court has four liberal members, three conservative members, and a swing justice (Anthony Kennedy). If Trump is elected, the court will return to having four conservative justices, with Kennedy acting as a somewhat conservative swing vote. This is the arrangement that produced the slightly right of center courts of the mid-1990s until Scalia's death. If Clinton prevails, there will be five liberal justices, plus Kennedy, which will produce more liberal court decisions across the board more reflective of those of the 1960s and 1970s.
2) The replacements for aging Justices Ginsburg and Bryer in the event of a Clinton Presidency: if there is a Democratic president, both Justices are likely to take the opportunity to retire. Although these replacements will maintain the same ideology of the court, they are no less important to Progressives because (in conjunction with the above) they will ensure the presence of five liberal justices for decades. The replacement of Ginsburg and Bryer, both in their 80s, with justices in their 40s or 50s will nullify the ability of a future Republican president to shape the face of the court. If Trump is elected, both justices are unlikely to voluntarily retire.
3) The replacement of Justice Anthony Kennedy: unlike the above justices, who are virtually certain to wish to replaced by Democratic nominees, Kennedy is a center-right swing voter. However, he is 80, and so may wish to retire regardless, and may find Hilary Clinton's relative centrist leanings a good fit for replacement in such a partisan climate. If Kennedy were to retire, Republicans would likely try to stonewall that replacement through the 2020 election because it would more-or-less irrevocably create a liberal balance on the court for decades that wouldn't even be alterable by stacking the court in the future, which is a nuclear option last considered by President Franklin Roosevelt in the 1930s.
The election is doubly significant because it is a non-incumbent election. Elected incumbents are very difficult to unseat: in recent memory, they have only lost in 1992, 1980, and 1932, and each of those had very important mitigating factors (respectively: Ross Perot's 19% of the vote as the most successful third-party candidate in modern history, the Iran Hostage Crisis, and the Great Depression). So, whoever wins, there is a far-better than 50% chance they will have eight years to shape a court with one vacant seat and three justices into their 80s.
The coming court battle will ultimately test each branch of government, not just the executive. Some Senate Republicans are already suggesting nominees could be stonewalled in a Democratic Senate, but would all republicans truly hold to that tenet? Or would a Democratic Senate, unwilling to give up their chance to shape the court, pursue their own nuclear option and fully do-away the filibuster and Senate rulings on 60-seat majorities?
Who knows? Our democracy is in uncharted waters, and our Supreme Court will become more important than ever.
This post was authored by Paul Grossinger, with Heidi Lehmann