The Supreme “Crisis”

By Mustafa Rasheed

The 2016 election was perhaps the most divisive and bitter election ever witnessed by the American public. The race changed the dynamics of American elections dramatically from what was previously somewhat policy and experience based, to candidate star-power, populism, and feelings. The emotionally charged election began with relatively normal standards and grievances with the federal government. On February 1st, 2016, Gallup public polling revealed the four top issues in 2016 amongst Democrats and Republicans: Terrorism and National Security, The Economy, Employment and Jobs, and Healthcare and the Affordable Care Act. However, from emails to Gold Star families, lewd discussions, alleged sexual assaults, ad-hominem from both sides, and many more scandals, policy, and experience didn’t appear much in news headlines. In addition, according to Perry Bacon Jr.’s “How the 2016 Election Exposed America’s Racial and Cultural Divides” from NBC News, the election illustrated America’s increased race and identity crisis. The election even spread spotlight on America’s alt-right as well as its regressive-left. It had the potential to address the United States’s many issues such as nuclear power and climate change, nevertheless, perhaps the most underrated domestic issue that would influence Americans far beyond a president’s four or eight year term was its third branch of government: The Supreme Court.

Most Americans are already familiar with the previously vacant seat now filled by Justice Neil Gorsuch, but the issue of the court extends far beyond one seat. The Supreme Court is one of three branches of the United States’s federal government. Its responsibility is to review laws from Congress and across the nation that pose constitutional questions. After consideration, the Supreme Court has the ultimate ruling as to whether a law is constitutional or unconstitutional. Most unique of being a Supreme Court Justice is lifelong tenure unless impeached. The Founding Fathers decided not to impose term limits on Supreme Court Justices to keep the courts free from partisan politics. Moreover, along with holding a lesser role in government, life expectancy was not high enough back then to cause concern. With medical and healthcare innovation, justices have the potential to live up to 60+ years which allows them to sit on the bench for 20+ year tenures.

By this point, anyone who dreads or loves Justice Gorsuch’s positions must be pondering on how long his term lasts, but the court has the potential to change dramatically over the course of Trump and the Republican’s four or possibly 8 years in the White House. Although the court is free from term-limits, the president nominates the judge. If the Democrats’ fight against Justice Gorsuch’s nomination was their best, the future of the Court is very much set for conservatives. What will that mean? Well, perhaps the words conservative and liberal are not appropriate for Supreme Court Justices. Traditionally, liberal presidents will nominate judges who adhere to Judicial Activism. Conservative presidents will nominate judges who adhere to Judicial Restraint. Judicial Activism argues that justices have a responsibility to carry the constitution with the times and influence change in society through the Constitution and the law. Critics argue that this is yielding too much power to the unelected justices and that it impedes the legislature’s role in creating the law. The Warren Court, presided by Chief Justice Earl Warren, was an activist Supreme Court from the late 1950s and 1960s that widened the role of the court by increasing civil rights and federal strength. The Warren Court is most famous for Brown vs. Board of Education of Topeka which banned segregation in public education. Judicial Restraint reduces the role of the court strictly to addressing legal questions. Judicial Restraint practicing justices are more precise with the text and restrict change through the Constitution. Critics of this ideology of jurisprudence accuse these judges of failing to address legal injustices and justifying conservative values by claiming the Constitution isn’t privy to change. Most restrictive of the recent court eras was the Rehnquist Court, maintaining a strong conservative-appointed wing in Justices Antonin Scalia, Sandra Day O’Connor, Anthony Kennedy, and Clarence Thomas.  With the court now filled with justices nominated by Republicans, the Roberts Court will be much more likely to exercise Judicial Restraint.

Justice Antonin Scalia’s death begins a very large transition for the Supreme Court. Justices Ruth Bader Ginsburg, Stephen Breyer, Clarence Thomas, and Anthony Kennedy are all nearing retirement. As the court is now 5-4, leaning to the restraint side, President Trump’s nominees will seal the deal against an activist court with Scalia’s passing, Justice Gorsuch’s appointment, and now Justice Kennedy indicating retirement. Although appointed by President Reagan and siding many times with the conservative-appointed bloc, Justice Kennedy has been in between the two wings of the court. He most famously wrote the majority opinion in the landmark gay marriage case, Obergefell v. Hodges, which granted same-sex couples a constitutionally protected right to marry. His retirement will deal a crucial blow to the activist side of the bench. While activist Justices Ginsburg and Breyer will likely stay on the bench, retirements from Kennedy and Thomas will lead to a stable conservative-appointed majority. As mentioned before, that number would not change for a generation.

So what does this mean for the Supreme Court? Americans will most likely see a court that doesn’t seek to change society, rather, strictly stick to interpreting the Constitution and leaving all manners of legislating to the Congress. Justices have been known to, but rarely, switch wings of the court contrary to their appointing president, but Americans should not look for change through the Supreme Court despite continuing gridlock in Washington.

Image Credit: ABC News

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