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PDFFrom The Nation:
According to a study using Martin-Quinn scores, “the current court is the most conservative since at least the 1930s,” wrote Nate Silver of the New York Times recently. Of the ten most conservative members of the Court from 1937 to 2006, five are serving today: Clarence Thomas (1), Antonin Scalia (3), John Roberts (4), Samuel Alito (5) and Anthony Kennedy (10). The fact that Kennedy is now regarded as a moderate swing vote underscores how far to the right the Court has moved. (Only Justice Ruth Bader Ginsburg makes the most liberal list, at number 10.)
That rightward shift of the Roberts Court is especially pronounced today, in the wake of the ghastly 2010 Citizens United decision and the prospect that the Court may invalidate the Obama administration’s healthcare law. These consequential decisions could be a frightening preview of things to come. In the next year or two, the Court will consider a number of blockbuster cases. In late April the justices will hear arguments on Arizona’s draconian “papers please” immigration law. The fall term, which begins in October, includes a challenge to affirmative action at the University of Texas.
In the not-so-distant future the Court will likely decide the merits of: California’s Proposition 8, which banned gay marriage, and/or the Defense of Marriage Act, which prohibits states from enforcing gay marriage laws outside their borders and denies government benefits to gay couples; Section 5 of the 1965 Voting Rights Act, which forces states and localities covered by the act to pre-clear voting law changes with the federal government to make sure they do not discriminate against minority voters; Montana’s ban on corporate campaign contributions and its challenge to Citizens United; the indefinite detention of enemy combatants at prisons like Guantánamo; the ability of foreign nationals to sue corporations and their employees in the United States for human rights abuses abroad; and possibly even Roe v. Wade, given the slew of anti-abortion restrictions passed by Republicans since the 2010 elections. “It’s the most startlingly jampacked period in the past century,” says Tom Goldstein, a veteran Supreme Court litigator and publisher of SCOTUSblog. “It’s hard to imagine a more perfect storm of cases that will be granted or argued right before the presidential election that are so freighted with politics.”
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Four justices are now in their 70s: Ginsburg (79), Scalia (76), Kennedy (75) and Breyer (73). If Romney wins, he could shore up the right flank of the Court; if Obama wins, he could tip the balance of power back to the center. “Citizens United would have never been put into law and America would never have been sold to the highest bidder had Al Gore won in 2000,” says former DNC chair Howard Dean. “Obama, if he wins, is going to appoint maybe one or two more Supreme Court justices. That could make all the difference.” At the Conservative Political Action Committee convention in February, Wayne LaPierre, head of the NRA, warned conservatives about an Obama second term. “If Obama wins re-election, he will likely appoint one—and perhaps three—more Supreme Court justices,” LaPierre said. “It’ll be the end of our freedom forever.”
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