During an election, presidential candidates are bombarded with topics to consider, from how to deal with ISIS to their tax returns. One issue that’s been getting relatively little coverage this year is their choices of the next Supreme Court judge. But this issue should highly factor into who is elected president.
Currently, one seat is open on the Court, left vacant by Antonin Scalia’s death. His death split the court into four conservative-leaning judges (Roberts, Alito, Thomas and Kennedy) and four liberal-leaning judges (Ginsburg, Breyer, Kagan and Sotomayor). Republicans in the House and Senate, in an unprecedented move, have refused to call a vote on President Obama’s nominee, in hopes of a Republican victory that will steer decisions their way.
This gamble means the election of a liberal candidate would swing the court liberally, while a conservative would re-establish the previous status quo. Obama’s current nominee, Merrick Garland, is considered politically moderate on the liberal side. Picking such a candidate was good PR; the Republicans’ refusal seemed even more absurd. The next President, however, will have no such restriction. The nominee must still be voted on, but neither Clinton, who has been leaning heavily left, nor Trump, whose racist, sexist tendencies have made him a favorite of the alt-right, would be assured to pick such a moderate nominee.
The nomination could also affect the current members of the Supreme Court. A study released in the Journal of Legal Studies last year found Chief Justice Roberts, who generally votes conservative, may swing more “moderate when his vote cannot change the outcome”. This swing has been evident in two cases after Scalia’s death, where he joined the liberals in favoring affirmative action and abortion rights. If Clinton elects a liberal judge, this change in balance of power may require a shift in Roberts’ vote, according to the authors, to better fit with the majority, although they did not expect him to give up his core conservative principles. A Tump election would reinstate the status quo.
The next president may have the chance to pick multiple justices, further tilting the court one way or another. Justice Breyer is 78, Justice Kennedy is 80, and Justice Ginsberg is 83. Since 1971, the average age of retirement among justices has been 79, so it is likely the next president could nominate more than just one justice. The recent terms’ dockets featured cases about health care, abortion and same sex marriage; so far, no cases currently on the docket rival the blockbusters of previous terms. This upcoming term faces cases about racial bias in the criminal justice system, immigration and detention, accountability for big banks in racially discriminatory mortgage lending practices, and voting rights and redistricting. Any justice appointed by the new president might deal with cases involving transgender rights or refusal of service to same-sex couples. According to Jeffrey L. Fisher, a law professor at Stanford, cases involving race may also be part of a new trend, including racial and ethnic bias in the criminal justice system, redistricting, and fair housing.
The Court does appear to be waiting for a new justice before hearing some cases. For instance, a significant religious case, Trinity Lutheran Church v. Pauley, No. 15-577, has yet to be scheduled, although the Court agreed to hear it January 15. Other cases accepted on that day were heard by the end of the last term in June. Another case, Gloucester County School Board v. G.G., No. 16-273, which features transgender rights, has been granted a stay, which suggests the Court may be willing to debate transgender rights. Some have speculated the Court may be cautious in accepting controversial, partisan cases until it is back at its full number, so they do not result in a 4-4 decision.
All of these future cases will create precedent that will affect Americans far past those involved in the case. The Supreme Court was the one to declare gay marriage legal in the US, a sweeping nationwide change that circumvented years of fighting at a state level. In the future, the court has the ability to do the same in other topics, like transgender rights. And the ideological makeup of the court will play a large role in what it decides. Whoever is voted in November 8 as President and in Congress will select that future by who they nominate and confirm.
Considering how long justices are in office, and the sweeping decisions they can make, the fate of the Supreme Court should be a factor in every voter’s mind. Those engaging in “protest voting” – voting for a third party because they like neither of the establishment candidates – should consider the effect of their vote stretching far into the future. The candidates have issued statements on potential nominees. Voters should examine these nominees and factor this into their vote.