Campaign 2016: The Court in the balance

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The past two weeks have seen rock stars and movie stars dropping like flies. Since January 10, we have lost David Bowie at age 69, Alan Rickman at age 69, and Glen Frey at age 67.

I mention their ages because advances in healthcare and lengthening average lifespans should not obscure the fact our mortality is inevitable, and it becomes ever more inevitable as we enter our golden years. And it cannot escape notice that the rock stars of the legal profession – the justices of the United States Supreme Court – are as golden a group of professionals as you will find anywhere.

Justice Ginsburg is 82, Justice Scalia is 79, Justice Kennedy is 78, and Justice Breyer is 76. Two more justices, Thomas and Alito, are in their mid-60s. Put aside death; these are the ages at which most people retire. Conceivably, the next President could have up to 6 appointments to the Supreme Court, and it would be surprising if there are not at least two to four.

Of the four justices over the age of 75, two are liberal, one is conservative, and the fourth is the swing vote, Justice Kennedy. Even if the next president only has one appointment – even if but a single one of the four justices now over the age of 75 leaves the Court – the potential shift in the balance of power could be profound.

Consider that the following issues all have been decided by just a single vote among the nine justices:  the constitutional right to same-sex marriage (Obergefell); the right of corporations not to fund contraception on religious liberty grounds (Hobby Lobby); the right to an abortion (Casey v. Planned Parenthood) and the government’s ability to ban partial birth abortions (Gonzales v. Carhart); the individual right to bear arms for self-defense (Heller); and the ability of corporations to engage in political speech (Citizens United).

And one cannot forget Bush v. Gore, also decided 5-4.

Arguably, the identity of next president will prove more important for who he or she appoints to the Supreme Court than for any of his or her own policies. For example, is there any realistic possibility of a President Bernie Sanders getting his socialist agenda through a Congress that almost certainly will have enough Republicans to filibuster anything extreme? Likewise, is it really likely that a President Trump would blow up our existing international trade agreements or actually deport millions of illegal immigrants from the country?

Chances are, on most issues, the country will continue to muddle along as it has been for the past decade. The one exception may be foreign policy, where presidents wield almost plenary authority. Yet even there, a single Supreme Court justice can make a difference:  the Supreme Court decided 5-4 that terrorist detainees held overseas have a right to habeas corpus (Boumediene), a decision that may explain the Obama administration’s penchant for ignoring the intelligence benefits of prisoners in favor of blasting the bad guys from drones.

Voters in the upcoming primaries cannot ignore the importance of the Court when selecting their parties’ candidates for president. A Republican casting a protest vote for a candidate who stands little chance in a general election – and Donald Trump, viewed negatively by nearly two-thirds of the general electorate, falls in that category – may as well accept the inevitability of President Hillary Clinton appointing a true-blue liberal, such as former Harvard Law professor Senator Elizabeth Warren, to the Supreme Court.  (And, in any event, I doubt that a President Trump can be counted on to nominate a reliable conservative to the Court).

To quote a German, Otto von Bismark, “politics is the art of the possible.” Not much is possible in a Congress selected by a closely-divided, ideologically-polarized electorate. On the other hand, a lot is possible with control of the Supreme Court. If the Democrats are able to replace Justices Scalia and Kennedy, and simultaneously swap out Justices Ginsburg and Breyer for younger versions of themselves, then for at least a generation every issue on the liberal social agenda will succeed at the Supreme Court.

Don’t believe me? Ask soon-to-former President, and former law professor, Barack Obama, who at 54 years old could be appointed by President Clinton or Sanders to sit on the Supreme Court for a very long time.

Contributing columnist Kevin P. Martin is a constitutional and regulatory law expert practicing in Boston. The views expressed in this column are his own and not those of his law firm. You can read his past columns here.