The Supreme Court Under a Second Obama Term
Yesterday, Cutlass left this thought provoking prompt over on the assignment desk.
What would be the dynamic of a conservative Chief Justice Roberts presiding over a leftist majority. Would radical court rulings lead to a grass roots revolt, mass civil disobedience or an outright constitutional crisis?
What legal/legislative recourse would conservatives have against the prospect of an leftist majority entrenched on the court for decades? Some kind of court packing scheme by a future GOP president? A series of amendments?
Justice Antonin Scalia will be 80 at the end of 2016. Justice Anthony Kennedy will be too. Even my old boss, Justice Clarence Thomas, who joined the Court young, will be 68. It is likely that one if not two of these Justices will retire by the end of the next presidential term, based on the last three departures: Justice David Souter retired at the age of 70, Justice Sandra Day O'Connor retired at 76; Chief Justice William Rehnquist was 81 when he passed away.
Faced with a 5-4 or even 6-3 liberal majority, I don't think Chief Justice John Roberts could do much. He would be most often in dissent, which would reserve to Justice Ruth Ginsburg (who herself would be 83 at the end of the next presidential term) or Justice Stephen Breyer the right to assign the majority opinions.
To me, that would mean that the limits on federal power would be lifted, and we would return to the New Deal constitutional world, where the Supreme Court upheld every exercise of congressional power to regulate (except for conflict with the Bill of Rights) and paid little heed to the constitutional position of the states. It would also, I guess, return us to a constitutional system of congressional dominance, in which presidents struggle unsuccessfully to control the administrative state.
I am doubtful that a popular response would work, other than what worked for Nixon and Reagan -- gradual replacement of liberal Justices with conservative ones. There has been little appetite among conservatives over the years to directly challenge the Court's legitimacy through grassroots revolts or constitutional crisis -- I tend to associate such tactics with the likes of Thomas Jefferson and FDR, though it must be said that Lincoln sailed pretty close to the line too.
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Dec '10
Re: The Supreme Court Under a Second Obama Term
"(except for conflict with the Bill of Rights)"
Shouldn't that read "(except for conflict with selected parts of the Bill of Rights; the second and tenth can be ignored)."
Dec '10
Re: The Supreme Court Under a Second Obama Term
Couldn't make it past the title... bite - your - tongue! Er, fingertips -- or something.
Re: The Supreme Court Under a Second Obama Term
Alas, I fear that John is right.
Jun '10
Re: The Supreme Court Under a Second Obama Term
This makes me shudder as much or more than anything.
Dec '10
Re: The Supreme Court Under a Second Obama Term
This is a no brainer. NO SECOND TERM FOR PRESIDENT ZERO! There that wasn't so difficult.
Jul '10
Re: The Supreme Court Under a Second Obama Term
Understatement of the year.
Lincoln tried to have the Chief Justice of the Supreme Court arrested.
May '10
Re: The Supreme Court Under a Second Obama Term
We need limited terms for justices.
Let's assume a world where justices serve 18 years. That's a long time, btw. Yet, that would mean that, with 9 justices, we'd see an opening in the court every 2 years. 2 new judges per presidential term. We're not seeing a current pace that matches even that glaciality. Current justices must be averaging 20-25 years. Insane.
As a result, each new appointment takes on world-historical significance. The political stakes are massive. In a republic, noooooobody should be as important for so long as a USSC justice. Especially for a position where it is considered gauche to ask direct questions about future behavior during the confirmation process.
Then, if the terms get shorter, we should enlarge the court, so no one president can ever appoint a majority.
Apr '11
Re: The Supreme Court Under a Second Obama Term
Dr. Yoo, thanks for the response - even if it is sobering.
I'm weary to tinker with long established institutions, but, on the surface, Fredösphere's suggestions have some appeal. Members of the Federal Reserve, with an even higher expectation of political independence, serve fixed terms. Why not SCOTUS?
If the primary rational for the lifetime justice is political independence it the case for the system's effectiveness seems pretty weak. Ideological purity is the overriding SCOTUS qualification, the court's "ideological balance" is noted as established fact, and elderly justices will even postpone retirement for years to ensure a replacement pick by his/her preferred party.
Experience and qualifications are easily pushed aside in the scramble for long term political control of the court. Party hacks like Harriet Myers and Elena Kagan were clearly selected more for their party loyalty and relative youth then any solomonic virtues. Second term Obama would do anything to ensure the likes of 40 year old Berkeley leftist Goodwin Liu as a High Court fixture for the next 50 years.
Am I missing something? Other then adherence to tradition is there a reason to accept the current court guidelines as sacrosanct?
Edited on Sep 29, 2011 at 3:39amApr '11
Re: The Supreme Court Under a Second Obama Term
Following on my previous comment:
it's 2017. Obama weary Americans have elected President Rubio and GOP majorities in Congress with a mandate to reduce and reform government. However, President Obama's final achievement was a Progressive majority on the Supreme Court.
The new president enters the spring with a successful first 100 days and high approve ratings. Suddenly - like a grotesque alien head bursting forth from the gut of Uncle Sam - the first Obama Court rulings come. There's something to offend almost everyone. One directly undermines President Rubio's recovery plan.
Americans, accustomed to a cautiously conservative court, are increasingly uneasy with this new activist court.
The popular, articulate president makes the case that this activist court is out of touch with Americans. He calls on Congress to consider bi-partisan reform to restore our time honored Constitutional system of checks and balances.
Plausible?
Also, Constitutionally, what would reform take? Can Congress simply amend the Judicial Act of 1789?
Also - I'm only half joking - could the Supreme Court ultimately find attempts to reform it unconstitutional? Like, their robe manufacturer is involved in interstate commerce or minority groups have a civil right to a progressive court majority?