Friday, October 28, 2016

A Matter of Supreme Importance

I rarely get into politics here on the blog. But it seems like every time a U.S. presidential election comes around, my resolve finally erodes at some point and I allow myself one political post. Well, this is it. And here's the twist: I'm not here to advocate for my preferred candidate. Instead, I'm asking you to consider a particular factor in your voting.

Polls show that most Americans are unaware of what goes on at the Supreme Court. Most can't name even one of the Justices. The composition of the Court barely rates as a factor in voting. This boggles my mind.

The judiciary, of course, is supposed to be fair and impartial. But it's ridiculous to pretend the Supreme Court can be. The cases that make it all the way up through the legal process to the Supreme Court, by definition, can't be decided by clear, existing law. Cases land at the Supreme Court because this law says one thing and that law says another. They land there because a judge in Texas said one thing and a judge in California said the opposite. They land there because the actions of a Congress or a President have trampled over the rights of a minority, and the Supreme Court is the only place that can hold them accountable. A Supreme Court case is almost always going to require a values judgment, so it's important to think about the values of the Court's justices.

This election's impact on the Supreme Court is not hypothetical. There is a vacant seat. It matters who fills it, because about one out of every five cases the Court hears is decided by a 5-4 vote. In most of those cases, the current eight justices split along predictable ideological lines: Breyer, Ginsburg, Sotomayor, and Kagan routinely support liberal arguments, while Roberts, Alito, Thomas, and Kennedy routinely support conservative arguments. The person who takes that ninth seat is going to break ties in the most politically charged cases of all. That person will be either a conservative-leaning choice (nominated by Donald Trump) or a liberal-leaning choice (nominated by Hillary Clinton; or Obama's very-slightly-left-of-center selection of Merrick Garland).

Say what you will about voting third party on other issues... for deeply felt principle, as a simple show of frustration, or as a stand for the future. But on this issue, right now, in this election, a third party vote is a vote that completely ignores the Supreme Court. Neither Gary Johnson nor Jill Stein (nor anyone else) will be nominating the next Supreme Court justice. The election of either Clinton or Trump will decide the next direction of the Supreme Court. If you're not voting for one of them, then the Supreme Court isn't a priority for you. Of course, that's your prerogative. But consider this:

When the Supreme Court makes a decision, it's built to last. When it upheld segregation as legal, it took 58 years to reverse the decision. You're almost certainly aware of your Miranda rights, for which you can thank a 50-year-old Supreme Court decision that to this day regulates many ways in which the police can question a suspect. The right to abortion exists -- somewhat abridged, but still largely there after decades of legal challenges -- because of what 7 men decided in 1973. This is the power that a Supreme Court justice wields. And in my lifetime, the average length of time they wield it has risen to 26 years, more than 3 times as long as the term limit on the president who appointed them. The possibility of change at the Supreme Court comes around infrequently, only in the event of retirement or (as in this moment) death.

Now consider some of the major cases from recent years, cases that were decided by just a one justice margin. Imagine the alternative outcomes with just a single changed vote.
  • Citizens United v. FEC: A conservative decision lifted restrictions on political spending by corporations, stating that such limitations violated free speech rights. The liberal dissent argued that corporations should not have the same free speech rights as individuals.
  • Shelby County v. Holder: A conservative decision eliminated federal supervision of voting laws, declaring it a 40-year-old policy no longer appropriate in the present day. The liberal dissent argued that federal oversight should have continued in states with a history of racially biased policies.
  • Obergefell v. Hodges: A conservative dissent would have left it up to public vote to determine whether same-sex marriage would be allowed. The liberal decision declared that the Constitution's guarantee of equal rights included the rights of gays and lesbians to marry.
  • DC v. Heller and McDonald v. Chicago: Two conservative rulings declared that bans on classifications of firearms are forbidden by the Second Amendment. The liberal dissents argued that the right to bear arms had previously been defined in the context of militia activity, and that certain limitations on individual gun ownership aren't inherently forbidden by the Constitution.
  • National Federation of Independent Business v. Sebelius: A conservative dissent would have voided the Affordable Care Act ("Obamacare"), arguing that the government can't force you to purchase something you don't want (in this case, health insurance). The liberal ruling construed the penalty for not having health insurance as a tax, not a forced purchase.
  • Burwell v. Hobby Lobby: A conservative ruling allowed the First Amendment's guarantee of religious freedom to be invoked by a corporation, letting it opt out of laws by voicing a religious objection. The liberal dissent argued that this curtailed the religious freedoms of the individual, whose own religious wishes should not be subservient to those of an employer.
This is just a small taste of the highly charged 5-4 cases of recent years. And that's not even getting into the 5-4 issues likely to reach the court in the years to come: the extent to which freedom of religion can exempt people from laws, further conflicts involving election integrity vs. voter suppression, LGBT rights against discrimination, and more.

You may not always side with the conservative view or the liberal view in all these examples. But almost certainly, one or more of these issues is particularly important to you, and you have a very strong opinion on how the Supreme Court should rule. You should seriously consider voting with that in mind.

Take a moment to consider how some of these issues might tip at a Supreme Court with a new conservative Trump justice, or a new liberal Clinton justice. Consider how many more decisions such a justice might make over a decades-long career. Think about how those decisions might still control American lives 40, 50, 60 years from now. Your choice for president (and for the senator who will vote to confirm a Supreme Court nomination) is the only chance you'll get to influence this in any way.

Be sure you're happy with how you use (or choose not to use) that chance.

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