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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