What would have happened if a President McCain had appointed conservatives to the Supreme Court, instead of Justices Sotomayor and Kagan, before the Court ruled on marriage equality in the Obergefell case? And what if a President Kerry had filled the seats that Chief Justice Roberts and Justice Alito took before the Court decided the Citizens United campaign finance case? Clearly both those rulings would have come out very differently, with enormous consequences for all Americans. As we approach the tenth anniversary of the Roberts-Alito Court and as the 2016 elections get more and more attention, these examples and many more should alert us that Election Day 2016 is truly judgment day for the Supreme Court and for Americans’ rights and liberties.
Today, People For the American Way released a comprehensive report, Judgment Day 2016, which looks at pivotal Court decisions since Roberts and Alito joined the Court that were decided by a single vote. Many have seriously harmed the rights of ordinary Americans and promoted the interests of powerful corporations. Examples include Citizens United, the ruling striking down a key part of the Voting Rights Act in Shelby County v. Holder, the decision allowing corporations to claim religion and deny contraceptive coverage to women in Burwell v. Hobby Lobby Stores, and the holding reinterpreting the Second Amendment and severely limiting efforts to limit gun violence in District of Columbia v. Heller. All these and many other decisions could be overruled or limited if a progressive justice replaces just one conservative on the Court, significantly blunting the right-wing judicial assault on a broad array of our rights and liberties.
But there have also been many critical 5-4 decisions over the past ten years where the Court’s moderate justices, usually joined by Justice Kennedy, have succeeded in protecting Americans’ rights and liberties. In addition to Obergefell, which found a constitutional right to marriage equality, examples include Massachusetts v. EPA, where the Court upheld EPA authority to regulate greenhouse gases; Alabama Democratic Conference v. Alabama, which invalidated a state redistricting scheme that used race to harm minority voters; and Boumediene v. Bush, which narrowly ruled that prisoners detained at Guantanamo can challenge their detention through habeas corpus petitions. All these and many other rulings could be overturned or limited if a right-wing justice replaces just one of the moderates on the Court. A Supreme Court with a far-right supermajority would put more and more of our rights at risk.
Why is this particularly important now? During the first term of whoever is elected President in 2016, four Supreme Court justices - including extreme conservative Antonin Scalia, conservative swing vote Anthony Kennedy, and moderates Ruth Bader Ginsburg and Stephen Breyer - will be over 80 years old. Given that the average retirement age for justices since 1971 is 78, the odds are overwhelming that the President elected next year will be able to nominate one or more justices who could produce a critical shift in the Court’s ideological balance.
Leading presidential candidates from both parties have already recognized the importance of future Supreme Court appointments and made clear their intent to nominate justices in accord with their views on crucial constitutional issues. In criticizing the Court’s recent 5-4 decision in Obergefell striking down discriminatory marriage bans, for example, Republican candidates Jeb Bush and Marco Rubio pledged to appoint to the Court “people with a proven record of judicial restraint” and “justices committed to applying the Constitution as written and originally understood,” in the hope of undermining or reversing the Court’s decision. On the other hand, in criticizing the Court’s 5-4 decisions striking down federal campaign finance law in Citizens United and part of the Voting Rights Act in Shelby County, Hillary Clinton pledged to “do everything I can to appoint Supreme Court justices who protect the right to vote and do not protect the right of billionaires to buy elections.”
PFAW’s report carefully reviews 5-4 decisions in eleven key areas where the next President and Supreme Court justice could make such a crucial difference to all Americans. These include money in politics; civil and voting rights (including immigration); LGBT rights; reproductive freedom and women’s rights; workplace fairness; protecting the environment; religious liberty; gun violence; marketplace and consumer fairness; access to justice; and protection against government abuse. In addition to past 5-4 rulings in these areas that could be limited or overruled, the Court is quite likely to be deciding cases on these and other key subjects in the years to come.
Conservatives clearly understand the crucial importance of the Court and the next election in all these areas, with one far right activist noting that “we cannot overstate the importance of the Supreme Court in the next election.” In fact, her group - the Judicial Crisis Network - recently launched an ad campaign criticizing Chief Justice Roberts and Justice Kennedy as not conservative enough, and demanding that Republican candidates pledge to appoint even more conservative justices. The group noted that Court decisions affect “every aspect of our lives today” and that “the next President could appoint a new majority to last a generation.” Hopefully, statements like that will help all Americans to pay close attention to the Supreme Court in the 2016 election and to recognize that November 8, 2016 truly is judgment day.