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Analysis: What if one of the conservative Supreme Court justices retires?

This article first appeared in the St. Louis Beacon, Nov. 13, 2012If President Barack Obama has a chance to replace one of the five Republican-appointed justices on the U.S. Supreme Court, he could bring about significant constitutional change and create the most liberal Supreme Court since the famous Warren Court of the 1960s.

But that’s a big if. There is a good chance that none of the five Republican appointees will retire during his term. Justices Anthony M. Kennedy and Antonin Scalia are 74, and both appear energetic and healthy. Justice Ruth Bader Ginsburg, a liberal, is 79 and appears somewhat frail, but replacing her would not move the direction of the court to the left.

If Obama is able to replace one of the conservatives on the court, the impact could be historic in key areas, legal scholars say.

A liberal court could:

  • Reverse the controversial Citizens United decision that allows unlimited corporate and labor union money to be used to elect political candidates;
  • Overturn the ban on women in combat roles in the military.
  • Strike down discrimination against gay couples, eventually leading to constitutional recognition of gay marriage;
  • Add mortar to gaps where the “wall” between church and state is crumbling, with crosses on public land and Ten Commandments monuments on state grounds;
  • Reaffirm affirmative action, which the current court seems ready to read out of the Constitution;
  • Uphold the Voting Rights Act as a constitutional response to the history of discriminatory voting practices in the South; the current court agreed last week to consider a case that could topple a key part of the law;
  • Give school districts latitude to adopt voluntary school desegregation plans, an option blocked by a 2007 Supreme Court decision;
  • Limit the reach of the newly recognized Second Amendment right to have a gun in the home for safety;
  • Shift the court back toward national power on federalism issues that pit state versus federal power;
  • Reinvigorate Congress’ strong right arm of commerce power, which was limited in this year’s decision on the Affordable Care Act;
  • Recognize "fundamental rights" that are not enumerated in the Constitution, such as the right to travel, the right of privacy, the right of autonomy and the right to live with extended family;
  • Provide greater constitutional protection to the abortion right.

‘Historically remarkable’

Greg Magarian, a Washington University law professor who clerked on the court, agreed it would be "historically remarkable" if Obama replaced either Justice Kennedy or Scalia. Not only could there be switches in high profile cases, but a "liberal-majority Roberts Court would mark the first time in longer than I can remember when a chief justice was on the minority side in most high-profile cases."

Magarian also thinks that a court with a more liberal majority would put an end to the kind of conservative activism that he thinks led to Citizens United and, this term, to the court reconsidering affirmative action and the constitutionality of the Voting Rights Act.

"I think the Roberts Court, secure with Justice Kennedy’s far-right views on race, is reaching out to decide these cases out of activist commitments," he wrote in an email.  "I would expect a liberal majority court to push back against what’s going to happen this term."

But Magarian doubts that Obama will have the opportunity to replace a conservative justice because justices in recent times have tended to hold on "until a simpatico president came along." The only exceptions were in President Nixon's first term when "the court suddenly aged as fast as the 1983 Milwaukee Brewers" and three liberals left the court. It also happened when Justices William J. Brennan Jr. and Thurgood Marshall, had to retire because of failing health at a time "when the highly rare event of a third consecutive presidential term by the same party caught up with them." President George H.W. Bush picked their replacements.

Are today’s liberals like the Warren liberals?

Even if Obama were to have the chance to replace a conservative justice, Joel Goldstein, a professor at Saint Louis University law school, doesn't think the justices on the newly liberal court would compare with those of the Warren era during which the court recognized new constitutional rights.

"Perhaps there would be a 'liberal' majority," he wrote in an email, "but I am not sure that all of the so-called 'liberals' are liberals. They certainly are not liberals in the sense that (Earl) Warren, Brennan, (William O.) Douglas, (Abe) Fortas or Marshall generally were."

Bruce La Pierre, a professor at Washington University law school, said that the whole notion that “reliable” Democratic appointees will vote in lockstep is "cynical." He wrote in an email, "Liberals who have chafed at conservative activism to overrule liberal precedents, shouldn't be pushing for a liberal court to overrule conservative ones.

"... it wasn't particularly seemly, appropriate or consistent with democratic governance when (former Chief Justice William H.) Rehnquist and (Justice Sandra Day) O'Connor threatened, as soon as they had the judicial horses, to overrule" precedents favoring federal over state power. "It is equally inappropriate," he added, "when the threat comes from (former Justice John Paul) Stevens et al. Perhaps, just perhaps, in a democracy, we should put the responsibility for political decision making on the legislature."

Magarian doesn't agree with his Washington University colleague "on the hypocrisy of activism" involving stare decisis – respect for precedent. He wrote, "Every justice pontificates about stare decisis when it suits his/her interest, and every justice votes to overrule past decisions when it suits his/her interest. There’s some institutional cost to overruling past decisions, which generally keeps things from getting too far out of hand. All of this has been true under the Rehnquist-Roberts Court (although Citizens United pushes the envelope), and it would remain true under a liberal-majority court."

Dave Roland, director of litigation at the libertarian Freedom Center of Missouri, agrees that Citizens United would be especially vulnerable if Obama replaced a conservative because "people on both the right and the left have expressed deep discomfort with its implications. I also think that the court would be much more likely to strike down laws that discriminate on the basis of gender and sexual orientation," he wrote in an email.

But he doubts that a liberal court would want to relitigate some of the other contentious issues like affirmative action and guns. "The nation as a whole is skeptical of the ongoing usefulness of race-based affirmative action. Americans as a whole favor gun rights; and a reversal or limitation of the recent gun cases may cripple progressive candidates for office in future elections. And liberals will not (or, at least, they should not) want to open themselves up to accusations of hypocrisy when it comes to their approach on stare decisis.

"A new liberal majority on the court may be able to justify a reversal of Citizens United, but if they engage in a more wide-ranging revision of precedents established in recent years, the immediate response of politicians on the right will be to attack the legitimacy of the court itself. I think that, just as Chief Justice Roberts could not bring himself to overturn the Affordable Care Act even though he had a clear path to doing so, so will a new liberal majority on the court be likely to refrain (at least in the short-term) from any abandonment of recent precedents that might damage the perceived credibility of the court."

Citizens United Most Vulnerable

Legal experts generally agree that the Citizens United decision would be the most vulnerable to being overruled, partly because it is controversial, partly because it is new and partly because the majority cavalierly threw out precedents to rule as it did.

If Citizens United were reversed before the next presidential election, then 2012 would be the only presidential election run under its no-holds-barred rules.

Ironically, the influx of unlimited funds seems to have had a minimal impact. The $386 million that super PACs spent to beat Obama, did not have its desired result. Sheldon Adelson's tens of millions failed to nominate Newt Gingrich or to elect Mitt Romney. And Karl Rove's super PACs spent more than $300 million, much of it in support of Republican candidates for the Senate who lost.

One defender of Citizens United is La Pierre of Washington University. "I think that the continued assault on Citizens United is most probably misplaced," he said. "It doesn’t seem to be the evil corporations who did most of the big spending – it was individuals (Sheldon Adelson, Koch brothers). And individuals were free, long before CU, to spend as much as they wanted in independent expenditures.

“Nike probably wants to sell shoes to Republicans and Democrats, which is of course the reason Nike and others apparently didn’t charge through the CU doors.

"By the way, is there any reason to believe that Missouri politics are any more or less corrupt now without campaign contribution limits than before with contribution limits? Money, power, and influence will always find a way to try to influence electoral outcomes – people actually care about policy (and, of course, lining their own pockets). Do you think that reformers want 'better politics' for that reason alone, or is it possible that 'better politics' means structuring election laws and campaign finance to achieve different ('better') results?”

Magarian counters that Citizens United is especially vulnerable because "the reasoning of CU abandoned stare decisis with remarkable vigor: I’ve never seen another decision that simply wrote so many past dissenting passages into law.  Whatever hypocrisy attaches to abandoning stare decisis, scuttling CU would be an easy one to pull off."

Big change in appeals courts

Whether or not President Obama has a chance to replace one of the Republican appointees on the court, he should be able to put his stamp on the federal appeals courts where many crucial decisions are made. The Supreme Court hears only about 100 cases a year, so the federal appeals courts have the last say in most disputes.

Cass R. Sunstein, a University of Chicago law professor who worked in the Obama administration, recently wrote in the New York Review of Books that “many of the most significant judicial decisions do not involve the Constitution at all.” Instead they are federal appeals court decisions that “determine the fate of countless regulations, issued by federal agencies, that are indispensable to implementing important laws — including those designed to reform the health care system, promote financial stability, protect consumers, ensure clean air and water, protect civil rights, keep the food supply safe, reduce deaths from tobacco, promote energy efficiency, maintain safe workplaces and much more.”

Sunstein wrote that when three-judge appeals court panels have two Republican appointees and a corporation challenged a regulation, chances are that the regulation will be struck down.

A recent example, he said was a federal appeals court decision to strike down the “Environmental Protection Agency’s important cross-state air pollution rule, which is expected to prevent, each year, 13,000 to 34,000 premature deaths, 15,000 nonfatal heart attacks, 19,000 hospital and emergency room visits, and 400,000 cases of aggravated asthma. On highly technical grounds, the court of appeals for the District of Columbia Circuit invalidated that rule just this August, by ‘a majority vote of 2–1. (You can guess the political affiliation of the president who appointed the two judges in the majority.) Also this August, a different panel of the same court invalidated the graphic health warnings for cigarettes, again by a majority vote of 2–1. (Yes, the judges in the majority were appointed by Republican presidents.)”

Sunstein noted that the president’s signature Obamacare law requires countless regulations for implementation. The composition of the federal appeals courts will have an effect on how the courts view those regulations.

When Obama took office, about 36 percent of the federal appeals court judgeships, 65 of 165, were Democratic appointees, according to a study by Russell Wheeler of the Brookings Institution. Now the percentage is 49 percent, with 81 of the 165 judges Democratic appointees. By the end of the second Obama administration, the percentage of Democratic appointees could well top 60 percent.

The Romney effect that wasn’t

Even if Obama does not have a chance to replace a Republican appointee on the Supreme Court, his election foreclosed the quite different prospects that a Romney presidency would have presented. With the strong possibility that Justice Ginsburg would have retired during his term, a reliable conservative appointee could have created a more cohesive conservative majority than any recent court. Justice Kennedy’s middle-of-the-road positions would have become mostly irrelevant.

The abortion right could have been read out of the Constitution. A possible majority for striking down discrimination against gays could have disappeared. More religious symbols might have been approved for the public square, such as postings of the Ten Commandments or graduation prayers in public schools. Rulings barring the execution or life imprisonment of juveniles could have been reversed.

For a subject that attracted no questions during the presidential debates and that got almost no attention in the campaign, the presidential results could have a profound effect on the future course of American law.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.

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