Supreme Court Could Become an Election Issue     Permalink

No matter how the Supreme Court rules on the Affordable Care Act, the Court itself could become an election issue, especially if it overturns all or part of the act along partisan lines, with all the Republican appointees voting to overturn it and all the Democratic appointees voting to sustain it. But even if one justice does not follow the party line, the Court is going to come in for a lot of criticism from the losing side. But a 5 to 4 decision along partisan lines is the worst possible outcome, both for the Court itself and for democracy, since it would then become obvious to everyone that the key to winning cases is not having the better case or even the better lawyer, but having more justices from your side than from the other side on the Court. In this light, it is useful to take a closer look at the current justices.

Ruth Ginsburg 79

Antonin Scalia 76

Anthony Kennedy 75

Stephen Breyer 73

Clarence Thomas 63

Samuel Alito 61

Sonia Sotomayor 57

John Roberts 57

Elena Kagan 51

The table above shows a few unusual characteristics of this Court. To start with, there are no Protestants on it. Three of the four Democratic appointees are Jews and the other one, like all the Republican appointees are Catholics. This is the first Court in U.S. history without any Protestants. The other noteworthy feature is that every justice is the product of an Ivy League law school, with Harvard beating Yale 5 to 3 and Columbia scoring one seat. It is difficult to imagine a more elite Court. Furthermore, all but Kagan were Court of Appeals judges prior to their appointments to the Supreme Court. Kagan was Solicitor General.

Historically, it wasn't always like this, with a Court full of non-Protestant, Ivy League, judges from the Court of Appeals. Just to provide some perspective, here is the lineup at the Supreme Court just after President Eisenhower appointed Earl Warren to the Court in 1953. Warren, a Republican, went on to lead one of the most activist Courts in history, starting with its decision to ban segregated schools.

In comparison with the current Court, we see that Protestants dominated, Ivy League schools did not (in fact, two justices did not even have a law degree), and only one of the nine had been on the Court of Appeals. What is even more amazing in our current exceedingly partisan environment is the appointment of Sen. Harold Burton (R-OH) by President Truman. When Justice Owen Roberts retired in 1945, Truman decided that it would be a nice gesture to appoint a Republican, so he picked the senator from Ohio, Burton, whom he knew well. The Senate unanimously confirmed Burton the same day as Truman announced the appointment and he took his seat on the Court the next day. In the event of a Supreme Court vacancy this year, it is unlikely that President Obama will nominate Sen. Rob Portman (R-OH) and even less likely that the Senate would unanimously confirm him the same day with no hearings at all.

A priori, one might think that a court loaded with experienced appellate judges who graduated from the finest law schools in the land with highest honors would be far better at interpreting the constitution than a court full of politicians and cabinet officers, not to mention people without a law degree. In reality, recent Supreme Court decisions have often been bitter 5-4 rulings along ideological lines whereas Brown v. Board of Education, which outlawed segregation in schools, was 9-0, written by the Republican Chief Justice and signed by all the Democrats. How can it be that Antonin Scalia (Harvard Law School, 1960, magnum cum laude) and Stephen Breyer (Harvard Law School, 1964, magnum cum laude) virtually never agree on what the constitution means, even though they probably took the same courses and had the same professors at Harvard? The truth, which nobody wants to say out loud, is that the constitution, adopted in 1787, is silent on most of the issues that are currently contentious so the justices just go with their personal ideology and then try to find some phrase in the constitution that justifies it.

Even more peculiar is that the justices who most emphasize strictly interpeting the constitution seem to enjoy invalidating laws duly passed by Congress and signed by the President even though nothing in the constitution authorizes the Court to invalidate laws. In the most famous case of judicial activism in all of U.S. history, Marbury v. Madison, the Supreme Court decided to invalidate a law, nobody complained much, and they have been doing it with impunity ever since, even though nothing in the constitution itself gives them this power.

Barring some fairly unexpected event, the seat most likely to become vacant next is that of Ginsburg, arguably the most liberal justice of all. Not only is she the oldest, but she has had both colon cancer (in 1999) and pancreatic cancer (in 2009). Furthermore, her husband of 56 years died 2 years ago. In the event of her retirement or death (or anticipation thereof), conservatives will fight to the finish to get a conservative justice to replace her so they will no longer be dependent on the unpredictable Anthony Kennedy. Of course, liberals will try to preserve the seat at all costs.

Ginsburg has never talked about her future plans, but in the event she is in the minority of a 5 to 4 decision on the ACA, she could decide to resign on the spot, worried about a President Romney replacing her. If she resigned this summer, President Obama would no doubt immediately nominate a successor and the Senate Republicans would filibuster the nomination, no matter who it was. Romney would then come under pressure to name his nominee, but he would never do that because any choice he made would alienate some voters.

The net outcome of a Ginsburg retirement would be to put the Supreme Court front and center in the Fall campaign, possibly even overshadowing the economy. On the whole, such a development would help the Democrats, who would rather have the election be about the culture wars than about the weak economy. But all this depends on Ginsburg, of course, and how much she fears Romney replacing her. Of course, like the young invincibles who don't have health insurance, don't want it, and certainly don't want the federal government forcing them to get it, she may think she will last forever (or at least until 2017). But she knows better. It will interesting to watch what she does this year. It could have a big effect on the election.

Absent a Ginsburg retirement, the bottom line here is that it is likely the presidential election will be fought over the economy, which the President has relatively little power to influence, rather than Supreme Court appointments, over which the President has complete control.

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