US Supreme Court faces historic transformation after election
WASHINGTON - The Supreme Court that begins its 2016 term Monday
stands at the threshold of an ideological transformation unmatched in
nearly a half century, one that eventually could put in play legal
precedents ranging from Roe v. Wade to Citizens United.
Not since 1968 has a presidential election carried such momentous
implications for the nation’s highest court, now divided down the middle
following the death of conservative icon Antonin Scalia. That election
gave Richard Nixon four appointments to the court and installed a
conservative majority that endured, however haltingly, until this year.
A victory by Hillary Clinton not only would break the glass ceiling
at the White House but shake the foundations of the court’s marble
palace, leading to its first liberal majority since the Vietnam era.
Donald Trump’s election, on the other hand, would continue and perhaps
even advance conservative control for decades to come.
While the change in personnel could happen fast - beyond Scalia’s
seat, three other justices are between 78 and 83 years of age - the
ideological shifts may take years to play out, particularly in areas of
the law that have been relatively stable for decades. But Supreme Court
experts predict repercussions from the 2016 election will grow in
significance over time.
Democrats stand the most to gain in the short run. The confirmation
of federal appeals court judge Merrick Garland, President Obama’s
nominee for Scalia’s seat, or someone else of Clinton’s choosing would
imperil conservative precedents in areas ranging from campaign finance
and voting rights to religious liberty and executive power. Should
Justice Anthony Kennedy leave the bench during Clinton’s presidency,
liberals could gain a sixth seat.
Under Trump, conservatives cannot improve upon Scalia, except perhaps
in the area of criminal defendants’ rights, where he often sided with
the court’s liberal wing. But should Trump get to replace Justices Ruth
Bader Ginsburg or Stephen Breyer, he could solidify the conservative
court GOP presidents have sought, with mixed results, for decades. That
could reverse liberal victories in areas such as abortion rights and
affirmative action.
“You don’t get many opportunities like this,” says Burt Neuborne,
professor of civil liberties at New York University School of Law, who
is writing a book about Supreme Court upheavals. Since the Civil War,
liberals have controlled the court for just 35 years, he says, adding:
”This will be a unique and precious moment, if it happens.”
The last two presidents who made such a difference on the court were
Nixon and Franklin Roosevelt three decades earlier. FDR’s eight nominees
and Nixon’s four flipped the court majority from conservative to liberal
and back again.
By the time Clarence Thomas replaced Thurgood Marshall in 1991, eight
justices were Republican nominees, though three voted more often with
the liberal bloc.
Those were “rare moments in American history where the ideology of
the court changed,” says Erwin Chemerinsky, founding dean of the
University of California-Irvine School of Law. Nixon, he notes,
“dramatically changed the direction of constitutional law.”
Bill Clinton’s nominations of Ruth Bader Ginsburg and Stephen Breyer,
followed 16 years later by President Obama’s nominations of Sonia
Sotomayor and Elena Kagan, now give liberals parity. With Kennedy’s
help, they have used their increased clout to dominate the court the
past two terms, legalizing same-sex marriage and upholding abortion
rights, affirmative action policies and Obama’s signature achievement,
the Affordable Care Act (twice).
Scalia’s empty seat has produced two parlor games in Washington - one
on who will fill it and when, the other on which legal precedents will
be undone as a result. Garland remains the favorite to win the first
contest, either this fall or next year, but Clinton could opt for a
younger, perhaps female or minority candidate.
Trump has floated a list of solidly conservative options.
Predictions about the direction of a more liberal or conservative
court run the gamut. Some liberals fear for Roe v. Wade, which has
protected abortion rights since 1973; some conservatives worry about
Citizens United v. Federal Election Commission, which has guarded
independent political donations by corporations since 2010.
“With such critical issues as voting rights, reproductive choice,
executive power, the death penalty and campaign finance reform likely to
come before the justices in coming years, many of the court’s landmark
precedents - both recent and longstanding - may hang in the balance,”
says Elizabeth Wydra, president of the liberal Constitutional
Accountability Center.
- USA TODAY
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