How Hillary Clinton could shift the balance of power in the Supreme Court
With Republican judges ageing and Hillary Clinton the clear favourite for 2016, Alex George examines the shifting scales of the Supreme Court.
It’s barely peeking over the horizon, yet hardly a week goes by where the U.S media misses an opportunity to speculate on the presidential prospects for the 2016 election. As controversies have continued to engulf the Republican field, there remains one very clear frontrunner — Democrat and former Secretary of State, Hillary Clinton. While her triumph is far from certain, another Democrat following Barack Obama into the Oval Office would have a considerable impact on the Supreme Court.
The Constitution of the United States prides itself on the purported independence of the judiciary but unfortunately, this just isn’t the case in practice. The American judiciary is heavily politicised, a claim that’s emphatically true of the Supreme Court.
Composed of eight associate justices and a chief justice, the Supreme Court is commonly divided into two ‘wings’ — the conservative wing, and the liberal wing. These wings group justices by their ideological leanings, and while judges are expected to apply their understanding of the law to the facts of a case to determine the outcome, justices of the Supreme Court generally work backwards — allowing ideology to determine outcome, and then interpreting the law accordingly. These wings commonly each have four members, leaving a ‘swing vote’ moderate justice who sits between the two extremes, joining a side in order to produce 5–4 majority decisions on controversial cases.
It’s the responsibility of the incumbent President to fill any vacant seats in the court, selecting a candidate whose views they wishes to see represented on the court, who is then confirmed by a Senate vote. Infamous for an array of blunders, George W Bush’s White House tenure illustrates the relationship between the President and the Court very well.
In 2005, celebrated moderate justice Sandra Day O’Connor announced her intention to retire. A Reagan nominee, she, the swing vote, was insistent that her replacement be selected by a Republican President. Prior to the confirmation of her successor however, the Chief Justice died. President Bush withdrew the nominee for her seat, and instead nominated him for the role of Chief Justice. Following his confirmation, Bush then chose close personal ally Harriet Miers to fill O’Connor’s seat.
Miers was subject to almost universal criticism. Bush was accused of cronyism by liberals, and Miers was attacked for her supposedly flawed conservative credentials by the right. Bush was forced to later withdraw her, instead nominating the much more conservative Samuel Alito.
Evidently, there is intense, paradoxical political pressure on the nomination of Supreme Court justices. They are expected to be partisan, but also to uphold the values of their nominator throughout their career in the Court. Herein lies the hidden significance of the already overhyped 2016 election — twelve years of Democrats in the White House pitted against an aging conservative judicial wing.
By 2020 when the next President is seeking re-election, two of the five Republican-nominated justices — Clarence Thomas and Antonin Scalia — will be in their mid-80s, well above the average age of retirement from the court, and almost seven years above their average life expectancy.
Should a Republican leave the bench before then, their replacement will be nominated by — if current polls carry through to 2016 — Hillary Clinton. This would, in turn, flip the current 5–4 Republican majority on its head, and open up the court to more progressive interpretations of the constitution on issues like abortion and gay rights.
Predictably, the two eldest conservatives are also the two most conservative members of the court. Last year, Reagan-nominated swing vote Anthony Kennedy wrote the court’s opinion in United States v Windsor, striking down the Defense of Marriage Act (DOMA). His opinion was worded so openly, it’s opened up various other anti-gay provisions to judicial challenge. Should he continue to lean left, and if the next President is indeed a Democrat, and is able to replace either elderly Republican with a more liberal justice, we could see the court dividing 6–3 on controversial issues, a scenario almost unheard of.
Perhaps the most obvious legal frontier this would impact is gay rights. In 2013, the Court ducked a decision on the constitutionality of California’s Proposition 8, which banned same-sex marriage. Their decision to refuse jurisdiction and avoid having to make a decision on the merits of the case was legally sound but cowardly, and likely also influenced by policy concerns. The Court could either deem the measure constitutional and, in light of their DOMA decision, publish two contradictory opinions, or they could strike it down and set themselves on the war path with the legislatures of thirty states having adopted similarly homophobic provisions.
The Court’s decision on the DOMA has subsequently been used by courts in five states to legalise same-sex marriage. Three of these states — Utah, Oklahoma, and Virginia — are continuing to litigate over the matter. It seems inevitable that one of them will find themselves before the Supreme Court again soon, and with a pro-gay swing vote, and a potential reversal of the Republican majority, would the Court run screaming from a decision again? Only time will tell.
Looking ahead to 2016, the United States could be a very different place. Clinton may not decide to run after all. Maybe she’ll be defeated by a Republican. Maybe the conservative wing will hang on in there for another four, maybe even eight, years.
What we can be sure of however is that a President’s legacy on the law of the United States isn’t wholly dependent on their executive policies and relationship with Congress. If a Democrat can go all the way in 2016, an appointment to the Supreme Court has the potential to impact on rights movements for decades after they leave the White House.
Originally published at abstractmag.com on March 12, 2014.
