We’re a week out from the new Supreme Court term, chock full of new and exciting legal questions. But for many, the more pressing deadline is still a month away: Election Day.
This year’s election day will feature of plenty of pressing issues across the country, not least of which is the presidential election. And with one SCOTUS seat already (interminably) in play, the makeup of the Supreme Court is weighing on the minds of commentators and voters around the nation.
The current conversation is geared towards the diverging paths somewhat laid out by the two-major party nominees. Last week, Republican nominee Donald Trump released ten additional potential nominees to the Supreme Court, following up his unusual move last May to release eleven potential names. The list (or at least, the second batch) included a more diverse list than many expected from Trump, except in one respect: their conservative judicial past, consisting largely of “bedrock conservatives” with records of hostility towards abortion, same-sex marriage, and federal regulations.
At this point it’s more than Democratic nominee Hillary Clinton has put out, with her only conclusive comment on the state of the Supreme Court being that she may not choose Judge Merrick Garland for the Supreme Court after all. But it’s also confirms for many that for the first time in a few generations, the balance of the Supreme Court’s liberal and conservative justices may be vaulted out of their status quo.
Garland is a noted moderate, and currently sits awaiting confirmation by the senate, which carries with it various political contingencies. But Garland’s confirmation is just the beginning, as FiveThirtyEight pointed out last month:
The truth is, this election is shaping up to be a major one no matter what the outcome of the election. The next president has the chance to have a SCOTUS legacy on par with Nixon, Reagan, or Eisenhower, who filled a handful of vacancies and shaped the view of the court for generations. Depending on who is elected, the court could shift overwhelmingingly left for the first time in decades, as The New Yorker writes: Clinton’s Supreme Court leverage lies in the short term: She could appoint a left-leaning justice to replace the solidly conservative Scalia, at which point the median justice would almost certainly become either Justice Stephen Breyer or Clinton’s appointee, either being reliably liberal. Prior to Scalia’s death in February, the moderate Justice Anthony Kennedy was the median justice.Trump’s leverage, meanwhile, lies in the medium term: Trump’s conservative pick to replace Scalia would almost certainly restore the status quo before Scalia died, with Kennedy as the median. However, the three oldest justices — Ruth Bader Ginsburg (83 years old), Kennedy (80) and Breyer (78 in August) — are liberal or moderate. Thanks to the relentless, unidirectional drumbeat of time, Trump would have a good chance to replace at least one of those justices, pushing the court in a conservative direction. On the other hand, the oldest of the three sitting conservative stalwarts — John Roberts, Samuel Alito and Clarence Thomas — is only 68.
The membership of the Court now reflects the partisan divisions in the rest of the country, where crossover voting rarely takes place anymore. There are only four Republican appointees on the Court: Chief Justice John G. Roberts, Jr. (nominated by George W. Bush), Kennedy (Ronald Reagan), Clarence Thomas (George H. W. Bush), and Samuel Alito (George W. Bush). They are matched by four Democratic appointees: Ginsburg (Bill Clinton), Breyer (Clinton), Sonia Sotomayor (Barack Obama), and Elena Kagan (Obama). “There has not been a definitively liberal majority on the Supreme Court since Nixon was President,” Noah Feldman, a professor at Harvard Law School, said. “Ever since then, liberals have sometimes managed to cobble together majorities to avoid losing—on issues like affirmative action and abortion—but the energy and the initiative have been on the conservative side. That stopped, at least for now, this year.”…For the first time in decades, there is now a realistic chance that the Supreme Court will become an engine of progressive change rather than an obstacle to it.
A changing ideological makeup of the court carries with it many byproducts. The most prominent and notable is, of course, the ultimate outcome of cases they handle. But it also changes the placement of those already on the court: assignment power.
The Chief Justice controls who writes the majority opinion—if that justice is part of said majority. Otherwise that power moves to the senior most justice in the majority. It’s the sort of thing that’s seemingly pushed justices in the past to move more liberal, and The New York Times thinks it’s possible it’ll happen again.
“[Chief Justice Roberts] is a reliable conservative in the most closely contested cases but moderate when his vote cannot change the outcome,” The Times pulls from a study last year in The Journal of Legal Studies. “This is consistent with a chief justice’s interest in being on the winning side in most cases; otherwise it looks as if he cannot control his court.”
Even the justices can’t avoid the chatter. Sure, there was the time Justice Ruth Bader Ginsburg made some startlingly frank comments on Trump’s candidacy. But in one of their off-season speaking sessions, Justices Sonia Sotomayor and Elena Kagan mused over the future of the court, and the dangers of a “cookie-cutter” Supreme Court.
“It’s obviously true that people bring their backgrounds and experiences to the job in some sense,” said Kagan, speaking to the University of Arizona at Tuscon. “People look at an institution and they see people who are like them, who share their experiences, who they imagine share their set of values, and that’s a sort of natural thing and they feel more comfortable if that occurs.”
Sotomayor agreed with Kagan, noting that the makeup of the court was not as representative of the nation as they might’ve liked to be, even if those experiences don’t necessarily indicate a judicial voting record.
“We’re not as diverse as some would like in many important characteristics — educational institutions, religion, places where we come from,” Sotomayor said. “The Supreme Court is never going to be a melting pot reflective of the country. In most of our lifetimes, the court is only going to turn over one full circle.”
For 2016 voters, however, that circle seems to be spinning a little faster this year.
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