Obama’s judgement call
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The Supreme Court of the United States consists of nine justices who are appointed with life tenure. The court has the responsibility and the authority to decide whether laws enacted in the US by cities, states and the national government are consistent with the constitution.
The guarantees of the US constitution are often stated in general and rather vague terms. For example, the constitution provides that the government may not "deny to any person the equal protection of the laws", may not make any law "abridging the freedom of speech," and may not inflict "cruel and unusual punishment". Because these guarantees are not self-defining, the justices often disagree about the most important questions of constitutional law. It therefore matters a great deal who gets to appoint them. In the American system, when a vacancy occurs because of retirement or death, the president nominates a prospective justice and the US senate has to then decide whether to confirm that nomination.
At the moment, the justices of the Supreme Court are sharply divided in their approaches to constitutional law. This division often plays itself out in ways that seem both ideological and predictable. This is so because presidents tend to nominate justices who share their perspective on the law, and although the senate sometimes withholds confirmation, it usually gives the president the benefit of doubt.
At present, five of the nine justices were appointed by Republican presidents and four were appointed by Democratic presidents. By American standards, all five of the justices appointed by Republican presidents are conservative in their approach to constitutional law, and all four of the justices appointed by Democratic presidents are liberal in their approach. Such a strong correlation is somewhat unusual, because historically, some justices appointed by Republican presidents have turned out to be liberal and some appointed by Democratic presidents have turned out to be conservative, but at the moment that is not the case.
I recently asked several of my colleagues (liberals and conservatives alike) to send me a list of the most important Supreme Court decisions since 2000. Twenty decisions made it to most of these lists. They dealt with such issues as the constitutionality of gun control laws, the death penalty, regulations of corporate expenditures in the political process, affirmative action programmes, the right to vote, and the rights of African-Americans, Hispanics, women, gay people, political dissenters, religious minorities, and persons accused of crime.
In these 20 cases, the conservative justices voted together 97 per cent of the time, and the liberal justices voted together 96 per cent of the time. Because there were more conservative than liberal justices, the conservatives were in the majority most of the time. Such an extraordinary degree of polarisation is quite unusual in the Supreme Court, but it is definitely the case at present.
What, then, was at stake in the 2012 presidential election? Because 17 of the 20 cases were decided by a vote of five-to-four, a shift in the makeup of the Supreme Court by even a single justice could have a profound impact on American constitutional law. It would matter greatly whether that new justice was appointed by Mitt Romney or Barack Obama.
Let me offer a few examples. Several years ago, in a case called Citizens United, the Supreme Court, in a five-to-four decision, held that government restrictions on the amount of money that corporations could spend in the political process violated the constitutional guarantee prohibiting government to make any "law abridging the freedom of speech". That decision, endorsed by the five conservative justices, unleashed the spending of hundreds of millions of dollars in the 2012 election. The dissenting justices, the four liberals, argued that this would swamp the electoral process, disillusion citizens, and give corporations undue influence on elected officials. This was a decision of momentous consequence for the American political system. The case would have come out the other way if the court had had five liberals and four conservatives.
Another example is gun control. The murder rate in the US is horrendous and almost all of the murders are caused by handguns. Several years ago, in a case called Heller versus United States, the Supreme Court, in a five-to-four decision, held that government restrictions on gun ownership violated a constitutional guarantee: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed". The four liberal justices who dissented argued that the right to own a gun was limited to the state's need for "a well regulated militia" and did not extend to private gun ownership. The five conservative justices in the majority disagreed and held that the preamble did not limit the scope of the right "to keep and bear arms". As a consequence, tens of thousands of Americans will continue to die every year from unregulated handguns.
A third example is affirmative action. The US has a long and awful history of racism, manifested first in slavery, then in laws that kept African-Americans separate from whites, and still today in the consequences of past discrimination and in public attitudes that are shaped by our own history. To address those concerns, private institutions and government agencies have developed affirmative action programmes that are designed to make sure that African-Americans and other historically disadvantaged minorities in the US have a fair chance of getting an education and a job. To do this, those institutions and agencies take race into account. The Supreme Court currently has pending before it the question of whether a state university that employs such a policy in admissions to ensure a diverse student body violates the constitutional provision that prohibits the government to deny "any person the equal protection of the laws."
In this case, Fisher versus the University of Texas, the four liberal justices will vote to uphold the challenged affirmative action programme, on the ground that the constitutional guarantee of equality was designed especially to protect African-Americans and that affirmative action is a reasonable and necessary way to achieve equality in the US. I predict that the five conservative justices will all vote to hold affirmative action unconstitutional, on the theory that the government can never treat people differently because of their race, even if the purpose is to rectify past racism. If I am right in this prediction, Fisher will have a dramatic and negative impact on equality in the US.
We do not know at present which, if any, of the current nine justices may die or retire in the next four years. What we do know is that it matters greatly to the future of the law and the nation that Barack Obama, rather than Mitt Romney, will have the opportunity to fill any vacancy that may arise.
The writer is distinguished service professor of law at the University of Chicago