SCOTUS: the defining issue in the 2016 election


Following up on yesterday’s post about the U.S. Supreme Court, attorney Rick Hasen has written this longread for TPM, which is well worth your time to read.  It begins:

The future composition of the Supreme Court is the most important civil rights cause of our time. It is more important than racial justice, marriage equality, voting rights, money in politics, abortion rights, gun rights, or managing climate change. It matters more because the ability to move forward in these other civil rights struggles depends first and foremost upon control of the Court. And control for the next generation is about to be up for grabs, likely in the next presidential election, a point many on the right but few on the left seem to have recognized.


Seated left to right: Justice Clarence Thomas, Justice Antonin Scalia, Chief Justice John G. Roberts, Justice Anthony M. Kennedy, Justice Ruth Bader Ginsburg.
Standing left to right: Justice Sonia Sotomayor, Justice Stephen G. Breyer, Justice Samuel A. Alito, Jr., Justice Elena Kagan.
Image Credit: Collection of the Supreme Court of the United States, Photographer: Steve Petteway.

When the next President of the United States assumes office on January 20, 2017, Justice Ruth Bader Ginsburg will be nearly 84, Justices Antonin Scalia and Anthony Kennedy will be over 80, and Justice Stephen Breyer will be 78. Although many Justices have served on the Court into their 80s and beyond, the chances for all of these Justices remaining through the next 4 or 8 years of the 45th President are slim. Indeed, the next president will likely make multiple appointments to the Court.

The stakes are high. On non-controversial cases, or cases where the ideological stakes are low, the Justices often agree and are sometimes unanimous. In such cases, the Justices act much like lower court judges do, applying precedents, text, history, and a range of interpretative tools to decide cases. In the most controversial cases, however—those involving issues such as gun rights, affirmative action, abortion, money in politics, privacy, and federal power—the value judgments and ideology of the Supreme Court Justices, and increasingly the party affiliation of the president appointing them, are good predictors of each Justice’s vote.

A conservative like Justice Scalia tends to vote to uphold abortion restrictions, strike down gun restrictions, and view the First Amendment as protecting the right to spend unlimited sums in elections. A liberal like Justice Ginsburg tends to vote the opposite way: to strike down abortion restrictions, uphold gun laws, and view the government’s interest in stopping undue influence of money in elections as justifying some limits on money in politics. This to not to say it is just politics in these cases, or that these Justices are making crassly partisan decisions. They’re not. It is that increasingly a Justice’s ideology and jurisprudence line up with one political party’s positions or another because Justices are chosen for that very reason.

You should read Hasen’s entire post.


  1. ts even without what you say coming about the sheer numbers increase every year. if what you say occurs change comes even faster 2018 maybe 2022 for sure for arizona.

  2. where are the republicans going to get the votes to win? republicans have only won the popular vote once since 1988. that was in 2004 when kerry and the unions were ambivalent on the immigration issue. the democratic party will never make that mistake again. 100,000 minority kids turn 18 (voting age) every month and 20,000 republicans die off each month. also blue states like california are going to universal registration while red states are surprising voting and while this will not effect electoral college it will effect popular vote. demographics means everything and everything else means nothing as vietnam war draft dodger and son of world war 2 draft dodger mitt romney found out the hard way! do the math! even in the republican fascist police state of arizona 100 latinos turn 18 every day!

    • The hard part for Democrats is turn out. If we can turn out our voters, we win. The Republicans and most importantly, their rich backers kniw this. That is why they run so many negative ads, to suppress turnout. And guess what? It works. It is a battle between us getting people excited enough to vote and them getting people depressed enough not to vote.

      Another problem is getting people to vote each and every election. People want instantaneous results. But politics is a long game. You have to win by increments. Most people don’t know that, they think if they just vote in presidential elections that will cause the change they want to take place. But ittakes consistent turnout even in non-presidential years to get th base you need for a movement to succeed. Latino voters are wonderful, when they turnout. Get them to promise to vote, not just this year but every year and we will turn Arizona blue.

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