Anyone thinking that he or she will sit out the upcoming election (or cast a “protest vote”) might want to think again. While the media has vast swaths of the electorate distracted by such matters as Donald Trump’s testosterone levels and Hillary Clinton’s pulmonary functioning, we stand poised to make a decision that will affect American life and culture in profound ways. The Supreme Court hangs in the balance.
To illustrate the stakes, I will outline a few issues where conservatives and liberals, respectively, have enjoyed some success, and where each side stands to lose just about everything if its candidate loses.
As backdrop to this discussion, I note (even if it is a bit unseemly) that one Supreme Court seat is open (the seat once held by Antonin Scalia) and that the next president is likely to fill not only that seat, but potentially a total of two, three, or even four. Ruth Bader Ginsburg (a liberal) is 83; Anthony M. Kennedy (a small-government conservative who often sides with liberals on social issues) is 80. Stephen Breyer (a liberal) is 78. The five other justices are 68 or younger.
Assuming that Ginsburg, Kennedy, and Breyer are the most likely candidates to retire and be replaced by the next president, one can see the trajectory of the Court. Either Clinton or Trump could replace one conservative (Scalia), the Court’s “swing vote” (Kennedy), and two liberals (Ginsburg and Breyer).
Now to the issues.
- The Second Amendment. In two 5-4 decisions, the Court has upheld the right of the individual to bear arms (at a minimum, to possess firearms in the home for personal safety) that applies against state attempts to impose certain gun control measures. If Trump wins, these decisions become etched into our jurisprudence and likely expand – for example, to the right to bear more and larger weapons in more and varying places. A Clinton win would mean the narrowing and possible overruling of these two cases.
- Voting. Conservatives won the day in two cases: Citizens United (the case striking down campaign contribution limits) and Shelby County (the case striking down parts of the Voting Rights Act that protected minority voting rights). Both decisions were decided by a vote – you guessed it – of 5-4. If Trump wins, these cases remain good law; Clinton has pledged to appoint justices who would overrule them.
- Prayer and religion. Conservatives won one case (5-4) in which the Court allowed prayer at a city council meeting and another (again, 5-4) in which the Court upheld the right of an employer (Hobby Lobby) to refuse to provide insurance-related contraceptive coverage for employees when the employer objected on religious grounds. If Trump wins, these religion-friendly decisions are likely to remain good law for decades; if Clinton wins, they are vulnerable.
- The death penalty. This one is simple; most scholars say that there are four votes against the death penalty on the Court right now; four justices would hold that it violates the Eighth Amendment in all circumstances. They await a fifth vote.
- The right to choose. Only five justices think that a woman has a right to have an abortion. If Clinton wins, abortion rights are here to stay. If Trump wins, Roe v. Wade could well be overruled.
- Marriage. The recent Obergefell decision (the same-sex-marriage case) was a 5-4 decision. If Clinton wins, it will be the law of the land for all time. If Trump wins, he will put justices on the Court who will be inclined to overrule Obergefell and return the marriage issue to the states, meaning that same-sex marriage will be legal in liberal states and illegal in conservative states.
- Affirmative action. There are five votes right now to allow public entities to establish affirmative action programs in higher education and employment. A Clinton win would keep the status quo in place; a Trump win would mean the end of government-run affirmative action programs.
- Public unions. The Court recently upheld the right of public unions to collect union dues from non-members. That decision, in the absence of Justice Scalia, was 4-4. A Clinton win would mean these unions could continue to finance themselves; a Trump win would likely mean the end of public-employee unions.
Of course, there are many other issues at stake as well. But again, if any of these issues is important to you, this election may be the last chance – either to cement the Court in the place where you want it or to flip the Court in the direction you’d prefer.