One of the most astute analysis of what is actually at stake in the 2016 election came from the man behind the infamous “oops” moment in the last presidential election. Speaking at Dickey’s Barbecue Pit in Taylors, South Carolina, former Texas Governor Rick Perry said: “Something I want you all to think about is that the next president of the United States, whoever that individual may be, could choose up to three, maybe even four members of the Supreme Court. This election isn’t about who’s going to be the president of the United States for just the next four years. This could be about individuals who have an impact on you, your children, and even our grandchildren. That’s the weight of what this election is really about. That, I will suggest to you, is the real question we need to be asking ourselves. What would those justices look like if, let’s be theoretical here and say, if it were Hillary Clinton versus Rick Perry? And if that won’t make you go work, if I do decide to get into the race, then I don’t know what will.”
To be honest, I have never been a fan of Rick Perry and I never thought that I would say this, but Rick Perry is absolutely correct.
Assuming that no justice leaves the Supreme Court before the next inauguration in 2017, three justices will be over 80 years-old when the next president takes office. What is really important in the short to medium term is not just that the next presidency will see multiple retirements; it is that the next presidency will likely see a shift in the Court’s ideological balance.
Let me explain.
The aging justices come from both wings of the Court. For instance, the two oldest justices are Justice Ruth Bader Ginsburg (a liberal), who will be 87 when the next president finishes his or her first term, and Justice Antonin Scalia (a conservative), who will be 84. The next oldest is Justice Anthony Kennedy (often described as libertarian), who will also be 84 by then. Imagine if all three were to retire some time in those four years. If the president were a Democrat, it would mean that the Court would wind up with a 6-3 liberal majority. If the president were a Republican, it would be a 6-3 conservative majority. Now for a real scare, add in Justice Stephen Breyer (who will be 82 by the end of the next president’s first term, and you could wind up with a 7-2 conservative majority. If the next president replaces all four of these justices, that will give the presidential appointees control over nearly half the Court. No president since Richard Nixon has had this kind of influence over the Court’s membership!
As I said before, Rick Perry is correct.
Here are two “ifs” to consider.
IF Hillary Clinton, or someone with similar views, has the opportunity to replace four justices, these new jurists will be joined by the relatively youthful liberal Justices, Sonia Sotomayor and Elena Kagan. That is enough votes to overturn Hobby Lobby (Burwell v. Hobby Lobby Stores, Inc.), ensure that anti-gay businesses do not gain a right to ignore federal law, reinvigorate reproductive choice, and potentially to shut off the flood of wealthy donors’ money into elections (Citizens United v. Federal Election Commission). It would also halt efforts to undermine the Affordable Care Act and shut down other legislation unpopular among Republicans through novel interpretations of the law and of the Constitution.
IF, on the other hand, Rick Perry, or someone with similar views, selects the next slate of four justices, America could be in for a seismic shift of earthquake proportions. Perry has argued that Medicare, Social Security, Medicaid, and federal clean air laws are all unconstitutional. He signed unconstitutional legislation purporting to nullify federal regulation of light bulbs. In his 2010 book, Fed Up: Our Fight to Save America From Washington, Perry also describes New Deal era Supreme Court decisions permitting labor regulation such as the minimum wage as “the second big step in the march of socialism.” According the Perry, the “first step” was a national income tax, which he has said stands alongside the direct election of United States senators as a major mistake among the amendments to the United States Constitution.
These notions place Perry to the far right of every sitting justice currently serving on the High Court. No justice, for example, has publicly claimed that Medicare is unconstitutional. Justice Clarence Thomas has argued, however, that Congress’s power to regulate interstate commerce does not encompass the power to regulate “manufacturing and agriculture.” This position is the same argument that late-nineteenth and early twentieth century justices used to block federal child labor laws, among other labor regulations. So, if Perry appointed four justices who share his understanding of the Constitution, it is most likely that Justice Thomas would provide the fifth vote to declare most national legislation governing the workplace unconstitutional.
President George W. Bush appointed two justices – Samuel Alito and John Roberts. Chief Justice Roberts is a very conservative justice. Since taking the Court’s center chair, he has torn down barriers to money in politics. He wrote the Court’s decision gutting a key provision of the Voting Rights Act. He has voted to restrict abortion rights. He joined the majority in Burwell v. Hobby Lobby Stores, Inc. and in the salary discrimination suit, Ledbetter v. The Goodyear Tire and Rubber Company, Inc. (the Court has since overturned the decision limiting women’s access to equal pay for equal work). And he has supported decisions enabling businesses to require their workers and consumers to sign away their legal rights as a condition of doing business with that company. Yet Chief Justice Roberts is widely viewed as insufficiently partisan by groups that have significant influence over Republican base voters – largely because of Roberts’ decision not to repeal The Patient Protection and Affordable Care Act, commonly called the Affordable Care Act, or colloquially, “ObamaCare.”
Justice Samuel Alito, by contrast, is probably the Court’s most partisan member. He authored both Burwell v. Hobby Lobby Stores, Inc. and Ledbetter v. The Goodyear Tire and Rubber Company, Inc. He spearheaded the conservative bloc of the Court’s efforts to defund public sector unions. And he was one of the four dissenters who tried and failed to repeal the entire Affordable Care Act. At oral arguments in a still-pending case seeking to gut Obamacare, Alito emerged as a more effective advocate for this effort to strip health care from millions of Americans than the attorney actually arguing the case on behalf of the plaintiffs. During a more recent oral argument on marriage equality, Alito repeatedly compared same-sex marriage to polygamy.
It is not difficult to predict some ways that the law would change if there were five justices comparable to Justice Alito on the Supreme Court, however. Roe v. Wade would disappear. Millions of people would likely lose their health insurance, and thousands would die as a result. Religious objectors would gain sweeping new rights to discriminate against LGBT Americans. And civil rights laws would wither – at least when they were not invoked by white plaintiffs. As federal Judge Harold Baer said of Justice Alito in 2013, the justice lacks “either understanding or interest” in the discrimination faced by women, African Americans, or Latinos.
Nothing is assured, of course, because it is impossible to know how health, fatigue, or politics might keep any particular justice on the Court or make them leave. But the odds are quite high that the next president will be able to leave the Court with a strong majority leaning toward his or her ideology. That kind of shift has not happened in decades; the last time a retiring justice was replaced by someone appointed by a president from the other party was in 1991, when Clarence Thomas replaced Justice Thurgood Marshall. Presidents Clinton, Bush, and Obama only had the chance to replace a justice they liked with another justice they liked, leaving the Court’s balance unchanged. But that streak will probably be broken by the next president. And the results for the country will be at least as profound as anything else the president does.
Again, as difficult as it is for me to admit it, Rick Perry is correct.
It is really too bad that Rick Perry will not be around the 2016 election for very long. It is refreshing to hear what a conservative like him is actually thinking. On this particular issue, Rick Perry does not have to say, “Oops.”