Consider the SCOTUS

Consider the SCOTUS

Today, the Supreme Court of the United States, in a 5-4 decision, affirmed that detainees at Guantanamo Bay, Cuba, have rights under the Constitution to challenge their detention in U.S. civilian courts.

This is a significant victory for those of us who believe that justice must take precedent over contemporary conditions. Indeed, Justice Anthony Kennedy, writing for the court, said,

”The laws and Constitution are designed to survive, and remain in force, in extraordinary times.

This decision spurred me to take a look at the makeup of the court today. What I found, disturbed me…

Roberts – 53 years old – GWB – Votes R
Stevens – 88 years old – Ford – Votes L
Scalia – 72 years old – Reagan – Votes R
Kennedy – 72 years old – Reagan – Swing
Souter – 69 years old – GHWB – Votes L
Thomas – 60 years old – GHWB – Votes R
Ginsburg – 75 years old – Clinton – Votes L
Breyer – 70 years old – Clinton – Votes L
Alito – 58 years old – GWB – Votes R

There are 5 justices age 70 or older. Of them, 3 are solid left leaning justices (Stevens, Ginsburg, Breyer), one is a swing (Kennedy) and one is Scalia, who will never die because he is not really a human.

The condition of the court presents a serious threat to the current stalemate. Should a justice retire, or God forbid, pass away, before the end of President Bush’s term, there is a greater probability that it would be on our side of the bench, changing the makeup of the court, and making it virtually impossible to affect that makeup in any tangible way for quite some time.

I know this is morbid, but the reality is that the makeup of the court has serious implications for the future of the nation. If the Democratic Party can win and hold the Presidency for 8 years, there is a distinct possibility that as many as 6 seats on the court could open up. This turnover would represent a complete flip of all of the “liberal” justices. Basically, we have to win to hold our 4 seats on the court, with the possibility of picking up 2 seats. This makes the task of electing a Democrat this November of critical importance.

In looking at the breakdown, one thing that I find quite disturbing is the way that Republican administrations have been able to stack the court with younger appointees. Clarence Thomas is only 60? He’s been in the court since 1991. He was 43 when he took the bench. By contrast, Ginsberg was 60 when she was appointed in 1993 and Breyer was 56 on his appointment in 1994. Republican administrations have had a lot more opportunity to appoint to the bench, having won 5 of the last 7 terms in the White House. It’s amazing that they don’t have a total lock on the SCOTUS. To be sure, were it not for Souter and Stevens, both Republican appointees who regularly vote with Democratic appointees, the state of the federal judiciary may be very different.

There are a lot of issues to consider, particularly for those who are undecided, or feel hurt as a result of the nominating process, but for me, this is one of the biggest. We are teetering on the brink of a conservative Supreme Court, that could completely remake US case law in a way that that would take generations to undo. As the process goes forward (we’re still nearly 5 months away from election day) this should be in the forefront of our minds, and a motivating force to make sure the Democratic party wins the White House.

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