IN EVERY PRESIDENTIAL campaign since Roe v. Wade, the Democratic nominee has ominously intoned that the Supreme Court hangs in the balance. “We must win to save the Supreme Court of the United States,” Walter Mondale declared in 1984. “This election is about the Supreme Court,” Al Gore warned 24 hours before the polls closed in 2000. (As it turned out, he was right.)
This year, however, the future of the Court has barely received an obligatory nod from Barack Obama. It’s a surprising omission: Liberal alarmism about the fate of the Supreme Court has never more accurately reflected reality. Since the Reagan years, with a brief 6-3 interlude in the early ’90s, the Court has been divided between five conservative justices and four liberals, with no genuine opportunities for either side to meaningfully tilt that balance. A Mitt Romney victory, however, would likely obliterate the status quo, creating a solid 6-3 conservative majority. The shift would transform American law and politics to a degree that is difficult to overstate.
To put his stamp on the Court, Romney would need a vacancy—and in the course of four or eight years, he would almost certainly have at least one. Predicting a Supreme Court retirement, of course, is always difficult, but Justice Ruth Bader Ginsburg turns 80 in March. Last August, she told Reuters that she hopes to spend at least three more years on the bench, which would allow her to match the 23-year tenure of Justice Louis Brandeis. (“Brandeis had a problem I didn’t,” she said of her desire to continue. “He was losing his eyesight.”) Ginsburg, thankfully, seems fully recovered from surgery for pancreatic cancer in 2009, but her interview suggests that she may be ready to retire in the middle of the next president’s term, especially if Obama wins. If Romney beats Obama, she might well try to wait him out. But as Brandeis learned, delaying retirement is not always an option.
There’s no reason to doubt that a President Romney would replace Ginsburg with a conservative. He has loudly promised to appoint justices in the mode of Chief Justice John Roberts and Justice Samuel Alito, and all of the leading candidates on his presumed Supreme Court short list—including Paul Clement, the former U.S. solicitor general; Brett Kavanaugh, a judge on the U.S. Court of Appeals for the D.C. Circuit; and Diane Sykes, of the U.S. Court of Appeals for the Seventh Circuit—fit that mode: pro-business conservatives who are interested in expanding executive power at the expense of Congress.
The last time the Court shifted so dramatically was 1987. That Court was also divided 5-4, with a liberal-leaning majority. But the retirement of Justice Lewis Powell, a moderate, presented Ronald Reagan a chance to tilt the Court toward the right. His first ill-fated nominee, Robert Bork, would have prodded the Court in an even more conservative direction. The fact that Reagan was forced to settle for his third-choice nominee, Anthony Kennedy, has somewhat mitigated the new ideological course. But the stakes are even higher now. A sixth vote would end the long fascination with Justice Kennedy’s self-conscious agonizing, eliminating his ability to impose his idiosyncratic libertarianism on decisions; it would create an invincible conservative majority.
LET’S START WITH Roe v. Wade. As long as Kennedy remains the swing vote, the core of Roe is safe. But the addition of a conservative justice would doom it—since it’s a virtual certainty that Romney would nominate someone who has signaled opposition to Roe without having explicitly criticized it. (That’s standard operating procedure for any bright young conservative with high aspirations.) Take, for instance, Diane Sykes. As a Milwaukee circuit court judge, she expressed admiration for pro-life protesters who blocked access to a reproductive health facility, even as she sentenced them to 60 days in jail. “I do respect you a great deal for having the courage of your convictions and for the ultimate goals that you sought to achieve by this conduct,” she said. When I asked Justice John Paul Stevens in 2007 to predict whether Roe v. Wade would survive, he indicated that the addition of another conservative would lead to the overturning of Roe.
On gay rights, Kennedy has voted consistently with the liberal justices. He may well play this role again next year, when the Court will likely consider the Defense of Marriage Act. Given his suspicion of federal power, it’s easy to imagine Kennedy joining the four liberals in striking down the part of the law that refuses benefits to the legally married spouses of gay federal employees. But in the next few years, the Court may also take up the broader question of the constitutional right to gay marriage. In light of Kennedy’s trajectory, there’s a decent chance he might join the liberals in recognizing that right. Perhaps a new conservative justice would share the doctrinal and social flexibility to join the decision. But the odds of that seem low, given the jurisprudential outlook of Romney’s pool of potential nominees.
Even when Kennedy doesn’t vote with the liberals, he often restrains the conservative majority. In cases involving affirmative action, voting rights, criminal procedure, and federal regulation, he has stopped just short of providing a solid fifth vote; he has often forced important concessions that prevent the conservatives from enacting their ideological agenda in its purest form.
Roberts has mused about the challenges of presiding over a closely divided Court. “To some extent, it’s an ideal situation,” he said in 2006. “Obviously, if you have a Court that always splits seventwo—and there have been Courts like that in our history—you’re not going to get enough traction for the idea that we really should be unanimous. Maybe the two are going to go for that because they think that gets them something they don’t otherwise have, but what’s in it for the seven? You do need some fluidity in the middle to develop a commitment to a different way of deciding things.”
Without this “fluidity in the middle,” Roberts would have little incentive or opportunity to persuade a six-member conservative majority that it’s in their own interest to accommodate the views of the three-member liberal minority. As a result, he would be less likely to boldly break ranks with the conservatives in the name of institutional legitimacy, as he did in the health care case, and more likely to vote according to his own ideological views. And in cases involving the future of the regulatory state, an unrestrained six-member conservative majority could have profound effects.
The conservative majority is already poised to roll back the New Deal administrative state. With the Obamacare decision, they signaled their willingness to reject 70 years of precedents requiring judges defer to legislatures on contested questions of economic policy—a shift that renders environmental, health, and financial regulations vulnerable. Moreover, the health care decision was the first case since the New Deal era in which the Court challenged Congress’s ability to attach conditions to federal grants. This limited vision of Congress’s spending power has vast implications. It threatens a whole array of programs, such as education funding that the states can only receive if they agree to follow antidiscrimination laws, or laws that condition highway funds on compliance with environmental requirements. Thus far, the Roberts Court has incrementally restricted congressional power. With the addition of the sixth justice, this agenda could proceed without inhibition.
Perhaps it’s understandable that Obama, a former constitutional law professor, hasn’t made the Court a central issue in the campaign: He appreciates that his health care victory has made the Court less of an ominous bogeyman for his Democratic base. History shows that voters are mobilized by the decisions that strike down highly visible laws, not the ones that uphold them. But Roberts’s recent display of prudence doesn’t mitigate the dangers that now loom. To point out the threats a Romney Court would pose isn’t demagoguery or alarmism; it’s the most compelling reason to support the president of all.
Jeffrey Rosen writes on legal affairs for The New Republic. This article appeared in the November 8, 2012 issue of the magazine under the headline “Romney v. Roe: The most important reason to vote for Obama.”
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.