Court balance has been a steady if unremarkable secondary issue in recent presidential elections. In 2004 Democrats tried to mobilize their base by arguing GW Bush would put radical conservatives on the court. And in 2008 Republicans tried to woo their base to back McCain because he pledged to put “strong conservatives” on the Supreme Court if elected. Neither argument worked and both Bush and Obama were elected.
In his second term Bush appointed current Chief Justice John Roberts and Samuel Alito to fill vacancies. In his first term Obama has had the chance to fill two vacancies left by retiring left leaning Justices. Come 2013 if Obama is reelected he may have an even greater chance to reshape the court than in his first term. Between January 2013 and January 2016 three of the nine Supreme Court justices will exceed 80 years of age, liberal Ruth Bader Ginsberg in early 2013, conservative Antonin Scalia in 2016, and swing vote Justice Anthony Kennedy in 2015.
Obama has already left an indelible mark on the court. He is the only president to have nominated two women for the court and their age along with life-time appointments ensures they will be making policy through their rulings well into the future. Of course the same can be said of Bush’s nominees who are just as young as Kagen and Sotomeyer. Considering how many important rulings have come down the pike since 2010, such as Citizens United, the Court could dramatically reshape America’s political landscapes in the coming years.
This summer the SCOTUS is expected to rule on Healthcare Reform, particularly the Individual Mandate, as well as Arizona’s controversial illegal immigration enforcement law. Most regard the court as having a 4-4 tie between conservatives and liberals with Kennedy being the swing vote. But the truth is Kennedy is more of a conservative than not. This gives conservatives a leg up in shaping policy through Court rulings.
Already both the left and the right have begun to try to mobilize their bases on this issue. But the bases of both parties are sure to come out regardless. As an issue for independents and the general public at large to focus on it appears to vague. Many voters tend to focus on current issues, such as the economy, jobs, Healthcare, Afghanistan, Iraq, etc.
But the truth is that a President’s judicial appointment power does not just stop at the SCOTUS. He also over the course of his term on average is likely to appoint 30-40 Appellate Court Justices. If one needs examples of how these appointments can shape public policy just look at the 9th CC’s rulings on AZ’s immigration law and dissenting rulings from three Appellate Courts on Obama’s HC Reform Law.
The 9th Circuit Court’s justices, a solid majority appointed by President Clinton and two by President Obama by a 2-1 margin declared AZ’s immigration law unconstitutional. On the president’s signature legislative achievement, Healthcare Reform, two Appellate Courts with a majority of their members appointed by President Clinton approved it while the one court with a majority appointed by a Bush did not.
There are other aspects to consider as well. The average term length for a Supreme Court Justice is 25 years. And presidents since HW have been appointing younger and younger justices. Clarence Thomas has been on the court since 1991 and yet is only 64. Sotomeyer and Kagen are both in their 50’s.
Perhaps reflecting the ideological and partisan divide that spans the country the recent number of 5-4 decisions also is important. During President Bush’s second term the Court in a 5-4 ruling dealt the President a blow on the War on Terror. And in 2010 the Court split 5-4 in the Citizens United case allowing corporations and unions to spend unlimited sums of cash on elections in the name of free speech. Considering this the shift of a single vote on the court could have vast political and social consequences.
For the first time since 1988 this election could offer the American public a twofer election. An opportunity to not just elect a president but also shape the ideological direction of the court for a generation to come and all those affected by the Court’s rulings.
For those worried about the prospects of an ideologically left or right court for another generation this election is of even greater import. Yet for the vast majority of voters the election will be determined on old factors such as ideology, partisanship, the appeal of the candidates, money, etc. Sadly, this debate, like many others that merit attention in a presidential election, will be lost among a host of other non-important issues.