The Republican Dream for the 2012 Presidential Election: Control of the U.S. Supreme Court

Several of my Republican friends—who are reasonable types, not Tea Party nuts—tell me that but for one fact, they would not mind seeing President Obama reelected. These Republicans think that President Obama has been an excellent commander-in-chief, who has handled our foreign affairs extremely well.  Domestically, they acknowledge that he inherited a terrible economy, but praise him for allowing business and finance to do their thing successfully, and without excessive regulation.  In their eyes, moreover, Obama’s spending—notwithstanding the Tea Party’s shouting—is sound, and they find his economic policies to be generally excellent.  Privately, and off-the-record, they will concede that he is a very able president.

Their only real problem with Obama’s re-election is that if there were to be an opening on the U.S. Supreme Court during a second Obama term, which they now believe is highly possible, they know that President Obama would deny conservatives a chance to take solid control of the top of the Judicial Branch—which is their fondest dream.

For them, this prospect makes the risk of having any Democrat in the White House far too great.  Now, when Republicans are so close to fully controlling the Supreme Court, they feel that they simply cannot afford a second Obama term.

The GOP High Court Dream

This High Court dream is largely fostered by the advanced age, and somewhat tenuous health, of Associate Justice Ruth Bader Ginsburg, who was born on March 15, 1933. She is the oldest member of the Supreme Court. She is also one of its most consistently progressive members.

It has not been lost on Republicans that Justice Ginsburg is approaching her eighties.  That is not particularly old for High Court justices, but given the additional fact that she has had some health issues, her advancing age has caused many (if not most) Republicans to believe that they must have a GOP president residing at 1600 Pennsylvania Avenue if, and when, she leaves the Court.  Replacing Justice Ginsburg with a conservative would give conservatives the one vote they need to capture a solid majority of the Court.

Notwithstanding the morbid, if not unrealistic, nature of this speculation, I can assure you that this GOP dream of controlling the Court is real.  In fact, many of my Republican friends who are unhappy with ALL the likely presidential nominees will vote against President Obama for this reason alone, not because of Republican loyalty.  To my amazement, the prospect of capturing the Court would, for them, even trump the high cost of having a numbskull in the Oval Office. (In any event, they believe, perhaps too optimistically, that the numbskulls will be removed during the primaries.)

The Current High Court Divide

For those who are not close followers of the current composition of the Court (and the birth dates of its Justices), it breaks down as follows:

The solidly fundamentalist conservative block includes Chief Justice of the United States John G. Roberts, Jr. (January 27, 1955), along with Associate Justices Antonin Scalia (March 11, 1936), Clarence Thomas (June 23, 1948), and Samuel Anthony Alito (April 1, 1950).  This group is usually joined (or even, at times, led) by Associate Justice Anthony M. Kennedy (July 23, 1936).  However, Kennedy can also, on occasion, find himself aligning with the Court’s moderates.

The moderates and progressives (there are no true liberals) include, in addition to Ginsburg, Associate Justices Stephen G. Breyer (August 15, 1938), Sonia Sotomayor (June 25, 1954), and Elena Kagan (April 28, 1960).

Thus, as the Court is currently constituted, there are four solid fundamentalist conservatives, plus Justice Kennedy, who is conservative on certain select issues.  Obviously, then, if Justice Ginsburg were to leave the Court, as some Republicans think might happen during the next four years, President Obama would appoint another Justice with the same sort of moderate-to-progressive philosophy held by his prior Court selections: Justices Sotomayor and Kagan.  In contrast, a GOP president would almost surely appoint another fundamentalist conservative Justice.

And another conservative, on this Court, will create an absolute radical majority.

The Radicalization of the High Court

Anyone who examines how Republicans operate when they control the federal government will notice there has been an ongoing and consistent effort to radicalize the U.S. Supreme Court.  GOP presidents are appointing increasingly conservative fundamentalists to the Court.  This appears to be an effort to use constitutional decision- making to accomplish conservative goals that, had they been put before the American electorate in a democratic election, would have been soundly rejected.  (I wrote about this trend at some length in Broken Government: How Republican Rule Destroyed the Legislative, Executive, and Judicial Branches.)

Supreme Court watchers like New York City attorney Martin Garbus have it correct in forecasting that the reigning Justices on the conservative-controlled Supreme Court will use their judicial philosophy to roll back the nation to a pre-New Deal world.  That would entail, for example, slowly but steadily removing regulatory controls on independent agencies like the Food & Drug Administration, the Securities & Exchange Commission, the Federal Trade Commission, and the Environmental Protection Agency—just to name those that would be obvious targets.

To give a further glimpse of what a conservative-controlled Court would have in store for America, in Broken Government I concluded that a solidly conservative Court will so dilute Roe v. Wade as to make legalized abortion meaningless; that affirmation action will become extinct; that the Court will overturn the long-settled law that applies the Bill of Rights to the states; that civil rights will be severely diluted; that a conservative majority will have no problem with “cruel and unusual punishment”; that we will see more rulings like Citizens United, with corporate personhood given constitutional protections; that gay rights will suffer setbacks; that the ownership and use of guns will know no restraints; that church/state separation will weaken; that more victimless sex-related offenses will prosecuted and the convictions sustained; that it will become easier for corporations – and more difficult for individuals –to use the federal courts for protection; and, finally, that the increasing restrictions on voting that have been imposed by state and local governments will be sustained in order to keep the have-nots, and the likely Democrats, out of the voting booths.

For readers who seek to gain further understanding of how a radicalized High Court will reverse the advances of the past half-century, and change the America we have come to know, I recommend Herman Schwartz’s Right Wing Justice: The Conservative Campaign to Take Over the Courts (2004) and two works by Martin Garbus: Courting Disaster: The Supreme Court and the Unmaking of American Law (2002), and The Next 25 Years: The New Supreme Court and What It Means for Americans (2007).

Obama Understands the Supreme Court Well

Fortunately, Obama—at one time, a constitutional law professor—understands the tremendous impact that the rulings of the High Court can have on the nation.  Thus, the Obama White House did a superb job in filling its two Supreme Court vacancies with Sonia Sotomayor and Elena Kagan.

Although elements of Obama’s electoral base have become disenchanted with the president, the prospect of a radicalized Supreme Court should motivate even the most unhappy former supporter.  The Court alone provides a compelling argument for us all to work as hard as possible to keep this man, as well as his Democratic successors, in the White House.  Frankly, too few Americans understand the impact of the Supreme Court on our way of life.  Only occasional Court decisions truly catch public attention, but rest assured that a predominantly conservative Supreme Court majority can profoundly influence the destiny of the nation.

For reasons I find incomprehensible, conservatives not only wish to stop all progress, but are also hell-bent on unraveling the progress we have made thus far by reversing earlier Supreme Court decisions, or weakening them so that they become meaningless precedents.

In short, as I see it, the GOP’s High Court dream should be everyone else’s nightmare.  So I urge those readers who have not focused on this issue so far, as it pertains to Election 2012, to please wake up and take this situation very seriously indeed.