2016 Collateral Damage: A Liberal Supreme Court

Scalia Full

The 2012 presidential race led the New York Times and Forbes to ponder what the Supreme Court’s future would look like with the reelection of Barack Obama. Two years into his second term the Court remains unchanged, which makes the 2016 presidential election all the more interesting. Current election coverage focuses on the Republican nominee horserace to determine who will compete against the presumptive Democrat nominee Hillary Clinton. Early polling data indicates that Clinton is a heavy favorite over potential Republican nominees. A January Washington Post/ABC News poll showed Clinton held a 53% to 41% lead over New Jersey Governor Chris Christie. Another Washington Post/ABC News poll also presented similar results for Clinton vs. Jeb Bush (54% to 41%), a now dropped out Mitt Romney (55% to 40%), and Rand Paul (54% to 41%). A Public Policy Polling survey revealed smaller leads over an unlikely to run Paul Ryan (50% to 45%) and Wisconsin Governor Scott Walker (51% to 44%). These poll numbers should be alarming to Republicans not just because of control over the executive branch, but also control over the Supreme Court. And yes, I did say control.

Recent rulings by the Supreme Court on campaign finance, public employee unions, and contraception coverage under the Affordable Care Act were all 5-to-4 rulings along party lines. David Paul Kuhn wrote in The Atlantic in 2012:

“from 1801 to 1940, less than 2 percent of the Supreme Court’s total rulings were resolved by 5-to-4 decisions. Since then, more than 16 percent of the Court’s rulings have been decided by ‘minimum-winning coalitions.’ In the two most recent Courts, more than a fifth of all rulings were decided by 5-to-4 votes.”

The graph below illustrates the marked increase in 5-to-4 decisions since 1940.

One Percent Supreme Court

Adam Liptak of the New York Times noted after the Supreme Court ruled on campaign finance in April 2014: “That 5-to-4 split along partisan lines was by contemporary standards unremarkable. But by historical standards it was extraordinary. For the first time, the Supreme Court is closely divided along party lines.” Garrett Epps of The Atlantic further supported this argument, “On the [Chief Justice John] Roberts Court, for the first time, the party identity of the justices seems to be the single most important determinant of their votes.” With four out of the past five presidents serving two terms in the White House, the smart money is on the next president serving till 2024, which could potentially mean appointing four new members to the Supreme Court.

Currently, four members of the Supreme Court are 75 or older, with Ruth Bader Ginsberg (81), Antonin Scalia (78), Anthony Kennedy (78), and Stephen Breyer (76). And if Ginsberg’s comments are indicative of the rest of the justices’ thoughts on retiring, only Father Time will prompt their exit from the Court (see Adrienne LaFrance’s Slate piece on potential age limits for Justices). Much to the chagrin of the Obama administration that would love to lock in another liberal justice for 30 years, Ginsberg stated: “Now I happen to be the oldest…but John Paul Stevens didn’t step down until he was 90.” By 2024, Ginsberg will be 90 and the over-75 justices will now be in their mid-80s making their replacement by the next president not just likely, but important for shaping America’s political landscape. This Pelican Brief scenario doesn’t feature a sinister assassin named Khamel, but rather an omnipotent Morgan Freeman character waiting for them at the pearly gates. The political ramifications of the 2016 presidential election are ever more present with the two least productive Congresses in U.S. history leading to more political discourse and influence from the justices.

Take immigration for instance. In 2012, after President Obama refused to deport many illegal immigrants that arrive in the U.S. as children, Justice Scalia stated,

“Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrant who invade their property, strain their social services, and even place their lives in jeopardy. Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement — or, even worse, to the Executive’s unwise targeting of that funding?”

Scalia’s public dissent drew ire from critics, arguing Scalia’s political assertions violated unwritten rules for justices to avoid such political discourse. Richard A. Posner wrote in Slate, “These are fighting words. The nation is in the midst of a hard-fought presidential election campaign; the outcome is in doubt. Illegal immigration is a campaign issue. It wouldn’t surprise me if Justice Scalia’s opinion were quoted in campaign ads.” Certainly, we could debate over the ethical implications of the Justices potentially influencing the political discourse in America, but a larger concern is the potential for varying legal interpretations based on who appoints them.

Our nation’s political polarization has crept into our highest judicial body that has no business being political. Regardless of the ethics, the politicization of the Supreme Court is here for the foreseeable future, which makes the 2016 presidential election all the more important. Let’s return to the initial premise: Republicans should be wary of believing the 2014 midterm massacre provides any insight into 2016 election. While Molly Ball argued in The Atlantic that Republican Party has been winning without rebranding, no statistical model can change the realities of the electoral map. Let’s take a look at the 2004, 2008, and 2012 electoral maps to gain some perspective:

2004 Map

President George W. Bush’s 286 electoral votes in 2004 illustrate the importance of three states: Florida, Ohio, and Virginia. Bush won these three states (Florida 52.1% to 47.1%; Ohio 50.8% to 48.7%; Virginia 53.73% to 45.53%) and any 2016 Republican win would have to include them.

2008 Map

The 365 electoral vote landslide by President Obama in 2008 revealed a nation clamoring for change after President Bush’s two terms. In turn, Florida (50.91% to 48.1%), Ohio (51.38% to 46.8%), and Virginia (52.63% to 46.33%) all voted for Obama. The largest swing and least likely to change is Virginia, which with the influx of young voters moving into Northern Virginia has made Virginia essentially a blue state. By the 2012 election, the Hope and Change promised by the Obama administration had worn thin and former Massachusetts Governor Mitt Romney proved to be a formidable challenger. Even though Romney was surprised he lost (He should have listened to Nate Silver and not his staff), Obama still achieved Electoral College dominance in 2012.

2012 Map

Given that Obama’s initial freight train appeal had worn off by 2012, his second presidential campaign victory might be the more impressive accomplishment. He won the popular vote by almost five million votes and won 332 electoral votes. Obama repeated victories in Florida (50.01% to 49.13%), Ohio (50.67% to 47.69%), and Virginia (51.16% to 47.28%), which were all very similar results to his 2008 campaign. But here’s why Republicans should be worried about the 2016 presidential election: they can win all three states and still lose.

2016 Map

Myra Adams argued in the Daily Beast that Democrats are starting with 246 electoral votes which is 91 percent of the way to 270 votes. With this bleak outlook of the electoral map, it is not surprising that the Republican Party is giving serious attention to Wisconsin Governor Scott Walker. Swinging Wisconsin red would allow for more creative math to take place. Unfortunately for Republicans, Adams doesn’t have faith in a red Wisconsin:

“Every four years the Republican mindset says Wisconsin will be a swing state. Then, a few months into the campaign the state loses it’s coveted ‘battleground’ status as polls begin to show its ‘blue’ reality. The truth is that not since 1984, when Reagan won in a landslide against Walter Mondale, has Wisconsin seen red.”

Similarly, New Jersey Governor Chris Christie might give some Republicans hope he could swing his 14 electoral votes red, but the residual effects of Bridgegate have relegated Christie to career lows in approval ratings in New Jersey. Given the realities of the electoral map, the election of a Republican candidate for president appears unlikely.
Certainly, various things could happen that might derail Hillary Clinton from being the nation’s next president, but she’s a much stronger candidate today than she was in 2008. Clinton will undoubtedly appoint liberal Supreme Court Justices that will, for better (for Dems) or worse (for Reps), shape the country through legal decisions. To illustrate the potential change in rulings based on partisanship, Ian Millhiser of American Progress Action pondered in 2012 the different rulings from the Court based on an Obama or Romney administration:

Supreme Court Rulings

This week the Supreme Court will hear its third challenge to Obamacare which, according to the Economist, could be brought down by a total of four words: “established by the state.” The Economist explains:

“The trouble is this: only 16 states opted to set up their own insurance exchanges. The rest were established by the federal government. When the Internal Revenue Service drafted its rules, it provided the tax credits to people who bought health insurance on both state and federal exchanges. But based on a literal reading of the law, the challengers in King contend, anyone who uses a federal exchange to buy health-care should not qualify for a federal subsidy.”

As the Justices (really just Roberts and Kennedy) decide the fate of Obamacare based on the legal interpretation of those four words, potential Republican presidential candidates will continue to court conservative donors for the most expensive campaign season in human history. But it won’t be enough; Hillary Clinton will be the next president of the United States which will most likely end the conservative majority of the Supreme Court. Seemingly, the only way to avert Clinton appointing four Supreme Court Justices is through clean living (Perhaps a preponderance of government approved broccoli! or timely State of the Union naps!). While the eventuality of the president essentially deciding legal interpretations by appointment appears inherently bad for our democracy, it does appear to be an eventuality. If only getting Congress to work with the president was that easy. C’est la vie.

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