In picking a president and Congress this year, voters will also be picking a Supreme Court.
After the unexpected death of Justice Antonin Scalia, the Court consists of eight justices, four appointed by Democratic presidents and four by Republicans. President Obama nominated a moderate lower court judge to fill the vacancy, but the GOP Senate leadership blocked consideration until after a new president takes office.
The Court was once seen as a non-partisan body, though hardly non-ideological. For many years, there had been a split between conservatives and liberals, but that has become a division along party lines, between Republicans and Democrats.
Depending on which side dominates, the Court may lean one way or another. With all nine justices, it might be influenced by a single swing-voting justice.
Congress is tied in partisan knots, so the Court has become the American super-legislature, creating some of the most important new laws of the past decade.
Since Scalia’s death, the Court has become as deadlocked as Congress itself. The new president’s nominee will tip its balance. It’s likely that Hillary Clinton will be elected, meaning the replacement of a conservative majority by a more liberal one.
One more step is required before that happens. Her nominee would have to get the approval of a majority of senators. Under Senate rules, 60 senators would have to agree to allow a vote on that approval.
When Republicans, then in the minority, denied the 60 votes to Obama’s federal judicial appointments, the majority Democrats changed the rules, eliminating the blocking vote for all federal judges except the Supreme Court.
If the Democrats control the Senate after the elections, they will be able to change the rule for the Supreme Court as well, clearing the way for a Clinton appointee. If not, she and the GOP leadership would have to find a way to compromise on a new swing-voting justice.
A single decision by the Supreme Court illustrates both its legislative role and the importance of the election on its future.
In 1965, Congress passed the Voting Rights Act. This law gave the Justice Department the power to halt discriminatory laws before they could be used to prevent voting by African-Americans. In places where there had been a history of such discrimination, laws or rules would have to gain its advance approval.
As the law began to be applied, the number of African-Americans registered to vote, mainly in the South, increased. Congress extended the law to stimulate and maintain this increase.
In 2006, it again voted an extension with strong support by both parties. In the House of Representatives, the extension passed by a vote of 390-33. In the Senate, the vote was 98-0.
In 2011, an Alabama county challenged the law, claiming that the high percentage of African-American registered voters showed that Justice Department pre-approval was no longer necessary. The case made its way to the Supreme Court.
In 2013, by a 5-4 vote along party lines, the Court ended pre-approval, though the Justice Department could still bring lawsuits against discrimination. While it recognized that “voting discrimination still exists,” it said that pre-approval could not “be justified by current needs.”
In other words, with higher African-American voter registration, there were no longer “current needs.”
This was clearly a political judgment. Suppose crime sweeps a city. More police are added and crime subsides. Can the city now cut the police force, because of reduced crime or is the presence of more police what keeps crime down? In effect, the Court ruled the city should cut the cops.
Five justices, none of them holding elective office, overruled the huge majorities in both houses of Congress. They substituted their political judgment for that of the elected members of Congress. They said the Constitution required such a decision.
Right after the decision, North Carolina adopted discriminatory laws it had been blocked from passing. One official reportedly said he understood that was the purpose of the Court’s decision. Several other states took similar actions.
A different Supreme Court could take a new look at the 2006 congressional extension, based on the new set of facts resulting from the states’ discriminatory actions.
While this is not the only case where the Court made a legislative judgment, it highlights one of the most significant aspects of the presidential election. But the candidates hardly mention it, though a questioner in the second debate raised it.
Blocking an Obama appointment, Senate Republican leaders wanted voters to “elect” the new Supreme Court justice. We may do exactly that, without even realizing it.