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Sunday, 02 October 2016





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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.




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