Revisiting the real issue

Not too long ago, I raised the issue of what the upcoming Presidential election is going to be about. The answer still hasn't been cleared up, but there is one 20-ton gorilla that's making tremendous waves now: the Supreme Court. In its current form, the Supreme Court has demonstrated a remarkable willingness to give the President a lot of leeway on a number of matters (including the handling of "unlawful enemy combatants," although they are revisiting that issue.) Furthermore, there is a clear ideological split, with an abnormally high number of 5-4 decisions (the same 5 outvoting the same 4.)

The Supreme Court gained a lot of support from the pro-life movement with their decision to uphold the ban on the D&X abortion procedure (aka "partial birth"), but in the grand scheme of things, I don't think it's nearly as significant as what has transpired this week. The biggest, of course, was the ruling on the unconstitutionality of affirmative action programs to promote racial diversity in schools. Almost as big was the ruling overturning over 90 years of antitrust law in allowing manufacturers to set "price floors" on goods.

These developments are staggeringly huge, and staggeringly controversial. Depending on your point of view, the affirmative action ruling either set the stage to further equality in race relations, or it set the civil rights movement back 40 years. Only time will tell. What I do know is that it opened a floodgate of righteous indignation and strong condemnation among (primarily Democrat) Presidential candidates. This is the "let's all hold hands and sing Kumbaya" issue politicians love: take a strong stand against an unpopular legal issue, turn it into a near-crusade, make it your rallying cry. You get to turn your attention away from controversial issues like immigration reform and your inability to influence the administration and show leadership and empathy and other similar virtues in a very safe environment. It won't help Clinton over Obama, but it most certainly will help Clinton over Giuliani or Thompson.

The other thing it does is bring sharply into focus just how critical it is that the Supreme Court be taken into account during a Presidential election. Here are a few fun facts for you:

John Paul Stevens is the oldest member of the Supreme Court at 87 years of age. He was appointed by Ford in 1975. Many Supreme Court observers believe he is waiting to retire until a Democrat is elected President, although that's not a sure thing.

Antonin Scalia (who is third-oldest at 71), Clarence Thomas, Samuel Alito and John Roberts overwhelmingly tend to vote as a bloc. Three of the four were appointed by a President Bush (both H.W. and W.), Scalia was a Reagan appointee. Scalia is considered the strongest jurist of the group, but is also very ideological. He occasionally flashes an independent streak. Alito is the most likely in this group to give a death row appeal a hearing.

Stevens, Ruth Bader Ginsburg (second-oldest at 74), David Souter and Stephen Breyer also tend to vote as a bloc, but not quite as rigidly as the Scalia bloc. Stevens is easily the most independent-minded justice, and I believe is the Court's most consistent dissenter.

Anthony Kennedy is the "odd man out." A Reagan appointee, he has historically been a "soft" member of the conservative wing of the court. While he usually voted with that bloc, he has gone the other way on occasion. Today, as Kennedy goes, so goes the Court: his vote is the swing vote.

All of this matters because it is very likely that Stevens will retire within 5 years, and fairly likely that Scalia, Kennedy and/or Ginsburg will retire within 10, depending on the political climate. The mere fact that so many decisions now are 5-4 decisions means that the Supreme Court will be a very real battleground in the next 2 Presidential elections.