OBAMA GETS SUPREME COURT PICKS IN SECOND TERM
In this election season, few have paid attention to the fact that the next President may well appoint two or three new justices to the Supreme Court before November 2016. Those appointments will likely affect constitutional jurisprudence in America for thirty to forty years, if not longer. Consequently, a vote for Obama is not one for “four more years” but is likely one for forty more years, because his mark on the Constitution will outlive his presidency for decades to come.
If President Obama is re-elected, he may well be able to create the most liberal Supreme Court in American history, altering jurisprudence in favor of a more intrusive and expansionistic federal government for decades to come. Four of the Justices are over 74. Justice Ginsburg is 79. Justices Scalia and Kennedy are 76. Justice Breyer is 74. Between now and 2016, at least two of the Justices will likely choose to retire. If one of those is Justice Ginsburg and the other is Justice Kennedy or Scalia, a re-elected Obama will have in his hands the power to reverse the present conservative 5 to liberal 4 split on the Court, ushering in a new era even more friendly to federal power.
Although it is difficult to predict how any Justice will vote on a particular issue (as Justice Roberts’ disastrous pivot in the Obamacare decision makes clear), there appears a basic ideological divide on the Court forming a more conservative camp in Justices Roberts, Scalia, Thomas, Kennedy, and Alito, on the one hand, and a more liberal camp in Justices Ginsburg, Breyer, Sotomayor, and Kagan. If Ginsburg and either Kennedy or Scalia leave the Court between now and 2016, President Obama will likely put in place others like his choices Sotomayor and Kagan who will profoundly alter jurisprudence in favor federal power at the expense of state and individual rights. The present conservative majority would be replaced by a new liberal one.
In decision after decision a new liberal majority would transform the law on abortion rights, property rights, obscenity and indecency, delegation of congressional power to administrative agencies, separation of powers, standards for review of administrative agency action, federalism, war powers and the right to bear arms, among others. That accumulated jurisprudence would form a formidable mountain of precedent in defense of federal power. By choosing prospective Justices who are in their 40’s and 50’s, Obama could alter the course of constitutional jurisprudence for three to four decades.
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For those who favor restoration of the original principles underlying the Constitution, a new liberal majority on the Court is a frightful, even dire prospect. In this election, while voters may dislike the choice the Democratic and Republican parties offer, they must appreciate that voting is nonetheless imperative because, at a minimum, the person who becomes America’s next President may well choose Justices who will affect the direction of constitutional jurisprudence in America for decades to come.
© 2012 Jonathan W. Emord - All Rights Reserved