Friday, August 29, 2014

Today’s Supreme Court decisions show why the 2014 election matters

It's easy to downplay the weight of the 2014 election. Nate Silver called it "the least important election in years," and it well might be. Republicans might gain the Senate, or they might not, but either way they'll hold the House and a Democrat will remain in the White House. Legislative gridlock will persist.

But today's 5-4 Supreme Court decisions are a reminder that the 2014 election could prove one of the most important in decades. Ruth Bader Ginsburg is 79. Antonin Scalia and Anthony Kennedy are both 76. Stephen Breyer is 70. John Roberts could decide he wants to live his dream of being a Hollywood sound engineer before it's too late. (Silver, I should say, mentions the possibility of a Supreme Court vacancy in his piece.)

The Supreme Court's lifetime appointments make it America's most irregular power center: its authority is vast, but its composition is borderline random. Bill Clinton, in his eight years as president, filled two vacancies on the Supreme Court — the same number as George H. W. Bush in his four years as president. Eisenhower filled five vacancies in his two terms, while Reagan filled three, and George W. Bush, like Clinton, filled two. Gerald Ford was in office for only two and a half years and appointed someone to the bench; Jimmy Carter was in office for four and got no appointments.

Supreme Court Justices die unexpectedly and retire strategically, and because there are only nine of them, the timing of even a single vacancy can end up reshaping American law for decades to come.

There have been efforts to change this. During the 2012 presidential campaign, Texas Governor Rick Perry proposed a more regular approach to Supreme Court succession: "A Constitutional Amendment creating 18-year terms staggered every 2 years, so that each of the nine Justices would be replaced in order of seniority every other year." It's a good idea, though Perry obviously didn't get anywhere near implementing it.

But in its absence, and with a Supreme Court divided by 5-4, every election has the possibility to be among the most important in recent American history. If Republicans take control of the Senate in 2014 then they'll have substantial veto power over any efforts President Obama might make to fill a vacancy that could reshape the Court. But if Democrats hold the Senate and Antonin Scalia unexpectedly retires, then the 2014 election might end up swinging control of one of America's three branches of government, with untold consequences that will reverberate for decades.

For that matter, today's Supreme Court is the direct result of George W. Bush's contested election. If Al Gore had won the presidency in 2000 and reelection in 2004, then William Rehnquist and Sandra Day O'Connor would likely have been replaced by Democrats, and Supreme Court jurisprudence in the years since would be very different.

The irony, of course, is that people said the 2000 election was one of the least important in history, too.

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