Since Monday's dramatic Supreme Court decisions, I've seen a few people recall that back in 2000, a lot of liberals justified voting for Ralph Nader (or not voting at all) on the basis that there wasn't a dime's worth of difference between George W. Bush and Al Gore. Bush appointed John Roberts and Samuel Alito to the high court, and it's safe to say that Gore's nominees would have been somewhat different, so it's unlikely we'll be hearing that argument again. Wherever you place your priorities in terms of the actions of the executive branch, at this point in history, the nominating of Supreme Court justices has become extremely partisan, in a way that isn't necessarily bad.
What I mean is that whatever the preferences of a particular president, his or her nominee will have to fit within a predictable mold set by the president's party. For Republicans, that probably means someone who served in a previous Republican president's Justice Department (as both Roberts and Alito did in Reagan's), is a member of the Federalist Society, may have done some corporate work on the side, and spent a few years issuing safely conservative rulings on an appellate court. For Democrats, it probably means someone who is an academic (like Elena Kagan), or if not, someone whose record on the bench gives a clear indication of their leanings (like Sonia Sotomayor)-and is more likely to be a woman or a member of a racial or ethnic minority.
As George W. Bush found out when he tried to nominate his good buddy Harriet Miers, the president's party won't tolerate someone without a clear record-they want to be sure that they'll get exactly what they expect from a justice. That means that there will be no surprises for anybody (not that people can't be fooled a little bit; with a friendly smile, a soothing voice, and some patently disingenuous baseball metaphors, John Roberts convinced a lot of Democrats he might be something other than the intensely ideological justice he has been).
As I said, this isn't necessarily bad; a justice like David Souter who surprises everyone is only pleasing if the surprise works to your side's benefit. But now that the Supreme Court's term has ended in dramatic fashion, it's worth taking a moment to look back on what they did over the past year, in case anyone is harboring any lingering doubts about the importance of the Court. Here are some of the major decisions, and a quick glance at them shows just how much impact the Supreme Court has on all of our lives:
- McCutcheon v. FEC: The law limiting the total amount a donor can give to multiple political candidates was struck down.
- Schuette v. Coalition to Defend Affirmative Action: Michigan's law banning affirmative action at state universities is constitutional.
- EPA v. EME Homer City Generation: The EPA's rules curtailing air pollution that travels from one state to another are constitutional.
- Greece, NY v. Galloway: Local officials can open public meetings with sectarian prayers.
- Hall v. Florida: Florida's rule that anyone with an IQ over 70 can be executed is unconstitutional.
- Wood v. Moss: The Secret Service was justified in moving protesters opposed to the president farther from where he was having lunch than protesters supporting the president.
- Abramski v. U.S.: "Straw purchases" of guns are illegal.
- Lane v. Franks: A whistleblower can't be fired for testifying in court.
- Utility Air Regulatory Group v. EPA: The Environmental Protection Agency's ability to regulate greenhouse gas emissions is upheld.
- Riley v. California: Police need a warrant to search your cell phone.
- ABC v. Aereo: Aereo's model of streaming over-the-air broadcasts to subscribers was declared illegal.
- McCullen v. Coakley: A 35-foot buffer zone to prevent harassment outside abortion clinics was struck down.
- NLRB v. Canning: The president can't make recess appointments during pro forma Senate sessions.
- Harris v. Quinn: Home health care workers paid by the state don't have to contribute to unions that negotiate on their behalf.
- Burwell v. Hobby Lobby: "Closely held" companies can deny their employees health coverage for contraception.
These are just some of the 74 opinions the Court delivered during this term. They range over a broad swath of commercial, political, and personal activity. And while there were a few cases where the Court was unanimous, as a general rule the more important a case is, the more likely there is to be a partisan division whose outcome is determined by who appointed the current nine justices.
Three of the current justices (Scalia, Kennedy, and Breyer) are in their 70s, and one (Ginsberg) is in her 80s. The next president, particularly if he or she serves two terms, is probably going to have the opportunity to reshape the Court for decades to come. Just something to think about.
