The future of the Supreme Court is at stake in the 2016 election.
We know the numbers. The death of Scalia split the Supreme Court between four Conservative Justices appointed by Republican Presidents (Roberts, Alito, Thomas and Kennedy) and four Liberal Justices appointed by Democratic Presidents (Ginsburg, Breyer, Kagan and Sotomayor.) The Republican Senate, in an unprecedented stance, has refused to call a vote on President Obama’s nominee to replace Scalia.
During the next 4 years the new President will likely nominate not only Scalia’s replacement but also an additional 3 new Justices. Since 1971, the average age of retirement for a Supreme Court justice has been just under 79 years. Ginsburg is 83, Kennedy is 80, and Breyer will be 78 in mid August.
The new Justices will set the direction of the Supreme Court and the values that guide it for the next generation. Scalia, after all, was on the court for 30 years before he died. Thomas has been on the court for 25 years and is still only 68.
We know the numbers, but many don’t seem to truly grasp their central importance. The Supreme Court can enable or disable our work. In the last decade the Justices have made it much harder to challenge wealth and power, to nurture the weak and assist the poor, to extend social justice to minorities, to reduce violence, stop discrimination, and defend the right to vote.
One could write a book about the recent work of the Supreme Court but to make concrete the crucial impact of the court on a progressive future, here is a small sample of what the Court has wrought.
Democracy: The Supreme Court’s most infamous and widely discussed intervention occurred in 2010 when it overturned a corporate campaign spending ban first advanced by Teddy Roosevelt. The infamous Citizens United decision allowed corporations and unions to spend unlimited amounts of money, much of it “dark money”, hidden from public scrutiny.
Citizens United changed the nature of American democracy. In the first five years after the decision one billion dollars poured into super PACs, $600 million of which came from just 195 donors and their spouses. Between 2006, before the Court decision, and 2014, after the decision, independent expenditures increased 25 fold.
In 2014 the Court allowed unlimited individual contributions. Both decisions were by a 5-4 vote. Dissenting Justice Breyer predicted, “If the court in Citizens United opened a door today’s decision may well open a floodgate.”
And so it has. In 2012 the Republican National Committee and its two Congressional campaign committees spent a total of $657 million. In early 2015 the Koch brothers announced that they and their friends would spend $889 million on the 2016 election. That is buying an awful lot of dirty tricks, non-profit front organizations, lawsuits and, dare I say, candidates.
There is much talk about the need to reverse Citizens United, but that can’t be done through Congress. Only a Constitutional Amendment or a Supreme Court reversal can. The chances of the former are infinitesimal. Continue reading