Sharp Rightward Shift of Supreme Court, and Need for Balance

April 12, 2012

by Jeremy Leaming

The nation’s growing income inequality, among other issues concerning the economy, should play a significant role in the presidential election, but writing for The Nation, Ari Berman delves into why the Supreme Court should also be “a major issue in November.”

The Supreme Court is simply not balanced. The court has been shoved far to the right. Berman cites Nate Silver’s reporting for The New York Times on a recent study that “finds that the current court is the most conservative since at least the 1930s.”

The Martin-Quinn Scores, which Silver rendered in two charts, also “imply that, on the basis of its median justice, the current court is farther from the ideological center than any recent court. For instance, it is farther from the center than the liberal courts of the late 1960s that were under Chief Justice Earl Warren.”

And beyond deciding whether health care reform will stand or fall, the Roberts Court is likely to consider a slew of major issues in the “not-so-distant future,” Berman writes. Some of these concerns include affirmative action policy, voting rights, marriage equality and reproductive rights. (As Berman notes, Republican state lawmakers have passed numerous onerous restrictions on reproductive rights over the last few years.)

The right already gets it. Leaders of the conservative movement have obsessed over the make-up the federal courts and the high court in particular, for decades. And those leaders haven’t stopped obsessing. Berman notes that NRA leader Wayne LaPierre declared, in hyperbolic fashion, at this year’s Conservative Political Action Committee, “If Obama wins re-election, he will likely appoint one – and perhaps three – more Supreme Court justices. It’ll be the end of our freedom forever.”

Stanford University Law School Professor and ACS Board Member Pam Karlan told Berman that there would be “no overlap between the people Obama would appoint to the Court and the people Romney would appoint. There’s more than just daylight.”

Berman, and Karlan, however, argue that Obama has made matters worse by allegedly not caring enough about the judiciary. It’s an argument that has been leveled against the president by law professors, pundits and others over and over again. Despite the fact that Obama entered the office during the Great Recession, and with a slim majority in the Senate, the president should and could have done more to remake the judiciary. Instead, as Berman notes, the federal bench has “a record-high eighty vacancies,” and Obama “could leave office with more judicial vacancies than when he entered.” (For more coverage the federal bench’s high vacancy rate, see JudicialNominations.org.)

Citing polling that shows erosion in public support of the Supreme Court, largely due to the Citizens United opinion, which gave corporations unfettered ability to influence elections, Berman says it is long past time for progressives to understand the importance of balance on the federal bench.