Usually the U.S. Supreme Court only makes headlines when it renders a decision on a controversial topic. For example, its decisions in late June on same-sex marriage and Obamacare dominated the news. Many political pundits hailed that week as the best week of Obama’s presidency even though it was a republican majority Supreme Court who delivered him the game ball.
For its 2015–2016 term, the Supreme Court has already laid the groundwork for another blockbuster group of decisions, even before the October announcement of the additional cases it will hear during the term. Here are questions it has already agreed to decide and which will dominate the news next year:
- Whether the government can freeze all your assets when you are accused of a crime, so that you cannot even pay your lawyer?
- Whether all current inmates who were sentenced to life without parole for crimes committed when they were minors be eligible for parole?
- Whether a state must apportion its electoral districts by the total number of residents, or may it consider only the total number of voters?
- When is affirmative action in undergraduate college admissions permissible?
- Can public employee unions have mandatory membership requirements, and if so are there restrictions for what purposes can the money be used?
Headlines about the Supreme Court will also come its way for a different reason. For decades, the makeup of the Supreme Court has essentially been fairly balanced in political and judicial philosophy. (Many of my friends will disagree with this statement thinking the court way too conservative, but I counter with last June as the proof in the pudding.) In 2016 this country will elect a new President, and, depending on who is elected, he or she is likely to orchestrate the most dramatic change in the make-up of the Court in its history.
The Court has the potential over the next eight years of becoming either an extremely conservative and literalist Court or a very liberal and activist Court — polar opposites depending on who’s President. I estimate that the new President will nominate and appoint at least three, and possibly five, members to the U.S. Supreme Court over the next eight years, and those new justices will determine the Court’s judicial philosophy (liberal or conservative) for decades.
Imagine a Court that will do away with Roe v. Wade or a Court that will interpret the Second Amendment to say that restrictions on gun ownership are Constitutional. A Court that would revisit Citizens United or one that might reconsider Brown v. The Board of Education. These are examples of the polar opposites that I am talking about depending on the next President and his or her Supreme Court appointments. This is the kind of dramatic shift one might expect.
Accordingly, the makeup of the Court and its role in our society is bound to be the subject of many a presidential debate and headline, as it should. What type of person a particular candidate would appoint to the Court is a question all candidates should be asked, and it should be a major factor in each voters decision about for whom he or she will vote.
The future make-up of the Court is also important in the near term because of the unwillingness of Congress and the President to cooperate and compromise. Thus, the Supreme Court has been left to fill the political power vacuum created by the other two branches’ stubborn and damaging behavior. Given this state of affairs, as voters we owe it to our country to listen carefully and study the various candidates’ views on the Court and the character and qualifications each would consider in making appointments.
I have said this before, but I would hope to hear a candidate say they would go beyond academic excellence and judicial experience for a Court candidate. I’d like to hear a Presidential candidate say he or she would also look for a candidate who understands how each and every decision affects individual lives. It would be okay with me if a judicial candidate had made a mistake or two in his or her life and learned from it, rather than a candidate who is so pure he or she must have lived in an ivory tower or isolated cabin in the woods. Finally, an ideal candidate would be one who believes that justice not tempered by mercy isn’t justice in the true sense.
Whatever your philosophy, spend a little time listening to the Presidential candidates talk about the kind of person they would appoint, and don’t merely accept a non-answer or a milquetoast, non-committal response that you are likely receive.