Private: Constitution Day 2017: The Importance of Election 2016

by Erwin Chemerinsky, dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

*This post is part of the ACSblog symposium: Constitution Day 2016. 

After the country observed Constitution Day this past weekend, there remains the simple reality that the outcome of the November presidential election almost surely will determine the meaning of the Constitution for decades to come. Since 1971, when Richard Nixon’s third and fourth justices for the Supreme Court were confirmed, until Justice Antonin Scalia died on Feb. 13, there always have been five and sometimes as many as eight justices appointed by Republican presidents. Now there are four justices appointed by Republican presidents (Roberts, Kennedy, Thomas and Alito) and four justices appointed by Democratic presidents (Ginsburg, Breyer, Sotomayor and Kagan). Who replaces Justice Scalia will tip the ideological balance on the Supreme Court in countless areas – such as campaign finance, gun control and separation of church and state – where he has been in the majority in 5-4 decisions.

But it is not only Justice Scalia’s seat that is at stake. Since 1960, 78 years old is the average age at which a Supreme Court justice has left the bench. There are now three justices – Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer -- who are 78 or older. Especially if the next president serves two terms, he or she will have several picks for the Supreme Court. This will determine the ideological composition of the Court, likely for decades.

Picking Supreme Court justices is one of the most long lasting legacies of any presidency. William Rehnquist was nominated for the Supreme Court by President Richard Nixon in 1971 and served until his death in 2005. John Paul Stevens was nominated by President Gerald Ford in 1975 and served until he retired, at age 90, in 2010. Clarence Thomas was 43 when he was confirmed in 1991 and if he remains until he is 90, he will be a justice for 47 years until the year 2038.

If a right-leaning president replaces Justice Scalia and say Justices Ginsburg and Breyer, these justices, together with Chief Justice Roberts and Justices Thomas and Alito – all of whom are in their 60s – will be a conservative majority for years to come. But if a left leaning president fills these vacancies, the new justices, along with Justices Sotomayor and Kagan will be a progressive majority for a long time.

The Supreme Court rarely goes through such dramatic shifts. From the 1890s until 1936, the Court was very conservative, striking down over 200 progressive federal, state and local laws. From 1937 until 1971, the Court always had a majority of justices appointed by Democratic presidents, culminating in the Warren Court. Now, again, there is an election that is almost certainly going to be pivotal in determining the direction of constitutional law.

Literally every constitutional issue turns on who fills these likely vacancies on the Supreme Court. A conservative president will mean a majority on the Court to overturn Roe v. Wade. A progressive president will mean abortion rights will be more secure than they have been for decades, a conservative president will mean the end of affirmative action programs and greater restrictions on the scope of civil rights laws. A progressive president will mean that governments can continue to use race conscious programs to remedy past discrimination and enhance diversity. A progressive president likely will mean the overruling of Citizens United v. Federal Election Commission and more ability of the government to regulate campaign finance and deal with the corrosive effects of money in politics. A conservative president will preserve Citizens United and mean that other campaign finance reforms are likely to be struck down. A progressive president likely will lead to a majority on the Court to declare the death penalty unconstitutional. A conservative president will allow the government to continue to execute individuals.

These are just a few examples. The president, of course, also determines who sits on federal courts of appeals and district courts. The Supreme Court decides relatively few cases a year – only 63 last year after briefing and oral argument. In the vast majority of cases, it is the lower courts that get the last word. The 2016 presidential election will be crucial for their ideological composition as well.

All of this is exactly as the Constitution intended. Presidential elections matter. If Al Gore or John Kerry had been president in 2005, rather than George W. Bush, William Rehnquist and Sandra Day O’Connor would have been replaced by progressives rather than by John Roberts and Samuel Alito. Countless decisions in the last decade would have come out differently.

As we celebrate Constitution Day, we should be mindful of one of the most remarkable aspects of the Constitution: since its adoption, without exception, it has provided for elections every four years and the orderly transition of power. That is so rare in world history. Some presidents have been extraordinary, some awful. But all have ended on schedule.

Few elections, though, have the potential of this one to determine the composition of the Supreme Court for such a long time. Thus, I strongly believe that no issue is more important in this presidential election than who will fill several vacancies on the United States Supreme Court.

Constitutional Interpretation