The current Supreme Court is among the most radically conservative courts in American history. Between recognizing corporations’ rights to spend unlimited amounts on elections and rejecting equal pay for equal work claims, the Roberts Court has rolled back civil liberties, disastrously deregulated the U.S. political system and heightened inequality for millions of Americans.
And if Mitt Romney wins today’s election, things are about to get a whole lot worse.
There is little doubt that the next president will appoint between one and three justices. Ruth Bader Ginsburg, the last liberal firebrand, is 79. Antonin Scalia, thearchconservative, and Anthony Kennedy, the right-leaning swing-voter, are both 76. Stephen Breyer, a moderate liberal, is 74. If President Romney were given the chance to replace either Ginsburg, Kennedy or Breyer, the results would be nothing less than catastrophic for our country and our Constitution.
You won’t hear this from either candidate — both Obama and Romney strenuously avoid mentioning the Court — but much of American jurisprudence hangs by the barest of threads: Justice Kennedy’s vote. If Kennedy or any liberal were replaced by a conservative, the far-right wing would have the power to reverse almost every progressive landmark decision of the past half-century.
Consider the cases that currently stand 5-4, with Kennedy joining the liberals. The most prominent of these is, of course, Roe v. Wade, which was last reaffirmed 20 years ago in Planned Parenthood v. Casey. In that case, Kennedy made a dramatic behind-the-scenes switch, joining a plurality opinion to uphold abortion rights. Since then, Sandra Day O’Connor has been replaced by Samuel Alito, which leaves abortion rights at a projected 5-4 vote today. The recent proliferation of anti-abortion state laws ensures that the issue will reappear soon; a single switched vote could doom legal abortion throughout the United States for a generation.
The list of progressive causes in peril does not end with reproductive rights. Kennedy provided the decisive vote in the 1992 Lee v. Weisman decision, upholding the illegality of prayer in public schools. He also supplied the fifth vote in 2005’s Roper v. Simmons, which struck down the death penalty for minors. A more conservative Court could easily overturn that precedent, allowing the United States to join Nigeria, Saudi Arabia and China in legally murdering 16-year-olds. The Court’s prohibition of the death penalty for mentally disabled people also stands at 5-4, as does its proscription against sentencing juveniles to life in prison for non-capital crimes.
More recently, Kennedy has functioned as the guardian of habeas corpus, rejecting the Bush administration’s attempts to deny Guantanamo Bay detainees council or trial. If President Romney were able to replace him (or Breyer or Ginsburg) with a Scalia-like conservative, these detainees would be stripped of all rights and subject to indefinite detention.
And what of minorities? Chief Justice John Roberts, Clarence Thomas, Alito and Scalia have firm ideas about the 14th Amendment’s Equal Protection clause: They believe it should be ignored. The Court’s decisions overturning anti-gay sodomy laws and overturning a state-wide prohibition of anti-discrimination laws for gays were authored by Kennedy. Both stand at 5-4, meaning a single Romney appointee could help reverse them. Moreover, same-sex marriage will likely soon come before the Court. While Kennedy’s vote is still unclear, there is virtually no chance that the four conservatives would ever affirm a fundamental right to marriage for gays.
A second term for Obama, on the other hand, would, at the very least, prolong the current ideological split on the Court, and very possibly tilt it back toward the left. The elder justices simply cannot live forever. The justice who will replace them — a moderate liberal in the mold of Elena Kagan, or a radical conservative like Alito — may be decided by the next president.
The future of the Court depends on the president. If Romney wins today’s election, our most cherished civil liberties stand little chance of survival.
Mark Joseph Stern is a senior in the College. LETTERS OF THE LAW appears every other Tuesday.
