To date in this unprecedented election year, the future of the Supreme Court has not received the attention that it deserves. That is regrettable because the next president will most likely have the opportunity to appoint several Supreme Court justices. If Donald Trump becomes president and names justices in the mold of Clarence Thomas, as he has said he would, a solid right-wing majority on the Court would turn back the constitutional clock nearly 80 years, overturning dozens of well-established Supreme Court decisions protecting fundamental constitutional rights and liberties and upholding the constitutionality of landmark laws based on the Court's interpretation of the Constitution's Commerce Clause. And conversely, several recent Court decisions that allow unlimited money into the electoral process, limit gun safety, and undermine the Voting Rights Act, could be enshrined for decades. All Americans must understand fully that on November 8th, they will not only decide who will be the next president, but also who will sit on the Supreme Court, perhaps for a generation or more.
Consider the following:
First, there is currently one Supreme Court vacancy. But two Supreme Court justices are in their 80s and another will turn 80 in 2018, so there is a high probability that the next president will have two or more Supreme Court appointments.
Second, if history is any guide, those new justices will serve on the Supreme Court for a long time. While most Americans know that presidents serve one or two four-year terms, they may not know that Supreme Court justices serve for life. Indeed, the nine Supreme Court justices who have retired or died in office since 1990 have served on average 28 years, equivalent to seven presidential terms.
Third, nearly every consequential Supreme Court decision over the past several decades has been decided by just one or two votes.
Moreover, if the Senate had not rejected in 1987 the Supreme Court nomination of Robert Bork, by a record bipartisan vote of 58-42, and subsequently confirmed Anthony Kennedy and David Souter, both nominated in the wake of the Bork rejection, landmark decisions protecting civil rights, reproductive rights and other privacy rights, worker rights, consumer rights, religious liberty, and environmental protections would have been reversed years ago. And recent constitutional victories on marriage equality and affordable health care would not have been achieved.
Justices Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito have been dramatically different from their conservative predecessors.
With so much at stake, there must be a vigorous national debate before decisions are made on election day. The next three weeks provide ample time for presidential and senatorial candidates to answer detailed questions about their own judicial philosophy, their favorite justices, and their positions on critical Supreme Court decisions. Answers to these questions would enable citizens to know, before they cast their votes, what the elections will mean to their constitutional rights and liberties.
A spirited national conversation would allow many Americans to learn that the Supreme Court has actually been a conservative Court since President Richard Nixon won confirmation of four Supreme Court nominees between 1969 and 1972. And they might be surprised to learn that over the past 50 years, 70 percent of all Supreme Court justices have been appointed by Republican presidents.
But, very importantly, it would become apparent that Justices Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito have been dramatically different from their conservative predecessors. With little respect for precedents inconsistent with their radical judicial philosophy, they have been able to move the Court significantly to the right, especially on the Citizens United (campaign financing), Heller (gun control), and Shelby County (Voting Rights Act) decisions. Only the presence of Justices Anthony Kennedy and David Souter has limited the reach of the far-right jurists. Generally, while the Court's right wing block has been able to erode landmark decisions protecting fundamental rights and liberties, they have not yet achieved a wholesale abandonment of those precedents. But Katie bar the door if they get a couple more like-minded colleagues.
Alarmingly, the Court in recent years has increasingly been invalidating laws on constitutional grounds, far more often than in the past. Such Supreme Court decisions can be overturned only by a constitutional amendment or by a change in the composition of the Court. Thus, a right-wing Court majority could have, in effect, a judicial veto over laws enacted to protect constitutional rights and liberties or to address national problems that require a national solution. Indeed, Americans about to vote might soon live the rest of their lives without many of the constitutional protections that they thought were theirs forever.
All voters, regardless of party affiliation or ideology, must understand the consequences of their votes in November. And everyone who wants to protect a woman's right to choose, marriage equality, the right to vote, equal rights for women, affordable health care, and religious liberty; or preserve the constitutional basis for doing something about climate change, income inequality, and the safety of our food and drugs, must vote against Donald Trump. And they must vote for Hillary Clinton.
Ralph G. Neas is the former Executive Director of the Leadership Conference on Civil and Human Rights and the Chair of the 1987 Block Bork Coalition.