Skip to comments.Good News on the Law: Can President Obama Change the Supreme Court?
Posted on 11/07/2008 5:44:54 PM PST by LikeLight
By Stephen L. Bloom Esq.
Good News Daily
Its no exaggeration to say that the lives, liberty, and property of Americans (especially the lives of millions of unborn Americans) rest in the hands of the nine Justices of our Supreme Court. With stakes so high, will the election of Barack Obama bring sweeping change to the delicate balance of power on the nations top court? Will the rise of President Obama inevitably usher in a new Liberal majority of Supreme Court Justices?
With so many hot issues coming to a head, will our high court soon be dominated by a new wave of Obama-appointed pro-abortion, pro-union, pro-gay-agenda, pro-affirmative-action, pro-redistribution-of-wealth judicial activists? Will gun rights, private property rights, religious speech rights, and other cherished Constitutional freedoms be swept away in an overwhelming tide of new Supreme Court Justices arrogantly legislating secularist intolerance from the bench? As our new President, can Barack Obama fundamentally change the direction of the Supreme Court?
Surprisingly, the answer may be No he cant!
To find out why not, lets take a quick look at the current make-up of the Court. As things stand, the nine Justices are precariously divided: four Liberals leaning to the left on most issues, four Conservatives leaning to the right on most issues, and one swing vote oscillating between the two factions. So, on the surface, it wouldnt take much to tip the scales. Maybe even just one new appointment would do the trick for President Obama. But this is where it gets interesting.
Supreme Court Justices are appointed for life, and they typically remain at their posts until infirmities of old age drastically interfere with their abilities. In our history, weve had Justices who stayed on the Court through strokes, blindness, cancer and a host of other grave maladies. In other words, barring unforeseen tragedy or accident, we can safely assume that few of the current Justices will voluntarily retire during the next four (or even eight) years. Chances are, there simply wont be many Supreme Court vacancies for President Obama to fill.
And an inside view of the demographics of the Court reveals that the two most likely vacancies are seats held by two of the most Liberal Justices: Associate Justice John Paul Stevens, who is 88 years old, and Associate Justice Ruth Bader Ginsburg, who is 75 years old. Stevens is said to be spry for an octogenarian, but Ginsburg is known to have experienced some severe health problems. Over the last eight years, both have doggedly remained on the bench in the apparent hope that President Bush would be replaced by a Democrat. So, if widespread speculation is accurate, Stevens and Ginsburg will be the initial retirees, making President Obamas first two picks Liberal-for-Liberal replacements merely maintaining the existing balance on the Court.
The other two Liberals are Associate Justice Stephen Breyer, age 70, and Associate Justice David Souter, age 69, both just slightly younger than the oldest Conservative, Associate Justice Antonin Scalia, who is 72, and the swing vote, Associate Justice Anthony Kennedy, who is also 72. Of these four, persistent suggestions have emerged that the Liberal Souter is the most eager to retire. Obviously, he would prefer to do so during a Democratic presidency. So if President Obama gets a third pick, it will likely once again be Liberal-for-Liberal, simply maintaining the status quo.
The remaining three members of the Conservative block are practically youthful by comparison with their peers. Associate Justice Clarence Thomas is only 60, Associate Justice Samuel Alito is only 58, and Chief Justice John Roberts is only 53. Each would appear to have many years of active service ahead of him.
While President Barack Obama may hope to impose real change on the Supreme Court, the good news for Conservatives is that he probably cant. Make no mistake, the 2008 election represents a missed once-in-a-lifetime opportunity for a Republican President to have established a decisive generational realignment on the Supreme Court (because the three probable retiring Liberal Justices could have been replaced with Conservative strict constructionists, creating a 7-2 or even 8-1 pro-life, pro-family, pro-constitution scenario). And certainly, President Obama will have a major impact on the federal judiciary through his appointment of activist Liberal Judges to the lower courts during his term in office. But, when all is said and done, its very likely that the Supreme Court at the conclusion of the Obama Administration will look almost exactly like the evenly split Supreme Court of today.
(Stephen L. Bloom is a Christian lawyer serving clients throughout Pennsylvania. He wrote The Believer's Guide to Legal Issues (Living Ink Books) and frequently speaks on Christianity and law. For information, visit his website www.IsThereALawyerInTheChurch.com. Please note: This column contains generalized information only and is not intended as a substitute for the specific legal advice of your own attorney.)
He will have more impact on the lower courts. Unfortunately, some decisions will become the law for large parts of the country.
To have any chance at all for sweeping change, he’d have to serve 2 terms. Even then it’s doubtful. The big loss is in not having somebody who will appoint young conservatives.
I appreciate you.
You do good work.
Its still dangerous. Any of our Supreme court justices could croak at any time. John Roberts with his epileptic seizure for example.
Obama has expressed interest in appointing justices who don’t have a grand idealogy and only deal narrowly with the facts of the case. It is an interesting position and the reason why Kminiec (Spelling?) supported Obama.
I just hope our justices stay healthy.
Also for the lower courts, it sucks that he has such leeway now. Given our weak senate position, we would have a hard time mustering a filibuster were he to appoint say a hispanic nominee (mel martinez and other senators from hispanic-heavy republican states would be in an impossible position).
Still, Bush has appointed about a third of the federal appelate judiciary. Most of our circuits have rather firm republican majorities with the 9th district of california being the only liberal court.
He solidified the conservatism of the judiciary for about a generation at least (and hopefully there is a republican president the next 2 elections to solidify it some more).
Even with two terms, I don't believe Hussein would change much on the Supreme Court. The only justices likely to die or retire during the next eight years are liberals. The federal courts are another matter. Hussein can do some damage there.
I keep thinking that when one of the SCJ announces they are going to retire when their replacement is found, I think the Repubs need to block any liberal justice the left puts forth.....and hold that ground to the bitter end. If the justice retires without a replacement, so be it. The remaining court can just continue with one less, or two, or however many retire.
With Democrat controlled House and Senate he can impeach and remove any USSC judge he wants to. I think his regime will be ruthless enough that he won’t let any piddly judge stand in the way of his objectives.
My comment? Aaaahhh, thank you so very much for posting this. Nice to know.
Yes, we lost a bigger opportunity than the Left gained. Tragic when you consider what was on the line.
What’s to stop him from adding more justices like FDR did or tried to do (my history memory chip is foggy tonight.)
It’s true that the ones most likely to die or retire are the liberal justices, so that the current makeup might not change.
However, recall his words from the 2001 tape:
“But the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent as radical as people tried to characterize the Warren court, it wasnt that radical. It didnt break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted, and the Warren court interpreted it in the same way that generally the Constitution is a charter of negative liberties. It says what the states cant do to you, it says what the federal government cant do to you, but it doesnt say what the federal government or the state government must do on your behalf.”
From his earlier viewpoint of community organizer, he figured that the best path was _through_ community organizing. But he has a different ‘viewpoint’ now. His observations of the ‘essential constraints’ of the court, is exactly the brick wall that FDR ran into early in the New Deal, where the court was declaring ‘unconstitutional’ many of his socialist ideas, and his ‘solution’ was to pack (add to) the court - and that worked! I don’t think that option has been taken away and frankly, after hearing his comments above, was one of the first things that passed my mind, given that he may be in the position now, to do just that. Just the threat could make it a 5-4 court in his favor, which is basically what happened with FDR
It is a fearful situation when the people step up through a constitutionally mandated process to negate the arrogance of the activist courts, and then those same courts are asked to strike back against the people.
The justices that will be appointed by Obama will be extreme in their antipathy for the US Constitution.
And the Republicans haven’t a chance in mounting an effective challenge.
As in any small group, the extremists will dominate. Look for Roberts, Alito and Thomas to be relegated to inconsequential status.
What worries me is Obama's NPR interview where he talked about the Court not going far enough in the redistribution of wealth (in the context of the civil rights cases).
I just hope our justices stay healthy.
Still, Bush has appointed about a third of the federal appelate judiciary. Most of our circuits have rather firm republican majorities with the 9th district of california being the only liberal court. He solidified the conservatism of the judiciary for about a generation at least (and hopefully there is a republican president the next 2 elections to solidify it some more).
The Bush judges are a great legacy.
His impact is this: he’ll replace old liberals with young liberals, and we’ll have to wait another 20-30 years or so to shift it back — if we are even able to get another conservative onto the High Court.
Thanks for that great article. God bless you for your work.
I have a question I hope you can answer: What do you think the odds are that FOCA will become law. It would destroy all the advancements we've made in the pro-life movement.
Fight FOCA (Unlimited Abortion) Sign the Fight FOCA Petition ASAP Get Involved!!
That's what the Left would do to us, but I don't see it happening the other way around. I'm not sure it's a good precedent anyway. I don't think "advice and consent of the Senate" was intended to give the Senate absolute veto power.
Obama will not bother with the threat. He will simply have Congress increase the size of the Court from 9 to 15. The rest is child’s play.
If that happens, then all bets are off. But even FDR had trouble when he tried to blatantly manipulate the Supreme Court.
You are very welcome.
Do you write this column Likelight?
My niece used to work for Compassion INternational.
This website appears to be part of that group, right?
In FDR's day, no one would have thought of Fort Marcy Park. Times change.
Doesn't Roberts pick the cases the court hears?? Doesn't he stay as Chief Justice??
Excellent thoughts. Obviously, my article was based on the assumption that Obama doesn't try a wild gambit like FDR, but you may be right. Then all bets are off.
True indeed. But stuff like that can backfire. Someone too extreme could also push others to a more conservative position. In any event, many a President has been ultimately frustrated by the outcome of his appointments.
Yes, we will taste the bitter fruit of this election for a long time.
Can the Republicans hold up Obama’s nominees the way the Dems blocked Bush’s choices? Can the Republicans call all the Dem choices extremist and use that as an excuse to prevent a vote on his nominees?
Really, not much would surprise me at this point. Certainly the Left will move to consolidate their power quickly and decisively. We've got to be ready to resist the onslaught.
Thanks for the work you're doing. And thanks for the kind encouragement.
Thanks. There's some connotation that 'audacity' and 'wild gambit' have in common ;-)
Yes, it is my column. Click on my FR profile and you can see stuff about what I do, if you're interested. Good News Daily is an independent ministry. I believe Compassion International is simply a sponsoring organization via advertising arrangements (as they do with many other ministries).
I hear you.
Excellent. We needed a little “Good News”.
Senate Republicans? Highly unlikely, unless things change radically in the 2010 midterms. And the Dems won't hesitate to use the nuclear option if they find a Republican filibuster inconvenient to their agenda.
You had to point that out, didn't you ;-)
However, the real problem is that we NEED a "conservative-for-liberal," the status quo is killing 3500 babies EVERY DAY.
I understand. We need another pro-life Republican President.
Also, should Scalia become ill or Kennedy retire it will be a disaster.
I know what you're saying but I still think he may.
One of the things that always 'intrigued' me about FDR. First, I'm a believer in the idea that FDR knew of Pearl Harbor beforehand. (See: Stinnet's "Day of Deceit" and "Sacrifice at Pearl" History Channel).
If we're to buy that, then even FDR knew that according to the Constitution (and the force that it had at that time), that America had to be attacked first, before he could enter the war - something that Churchill had been begging him to do and something that he had wanted, despite some campaign rhetoric to the contrary. And to his credit, I guess, he did at least 'respect' the Constitution in that sense or he thought along Obama's lines that the 'essential constraints' were to great to overcome on that issue anyway.
While I'm all for the current war, I'd still like to see the US going back to the idea of Congress declaring it.
Love your handle :-)
Yes, we need to be praying for the health of these men. They are the firewall for the next four years, at least.
There is no rule saying how many justices there must be. With the senate’s backing, BHO could appoint more, with or without retirements.
This is good news and a thoughtful analysis.
It does ease my biggest worry about Obama’s Presidency somewhat.
It’s just going to be frustrating watching the parade of 5-4 votes continue.
Appreciate the kind words, NJ. And, yes, the parade of frustration continues.
What if he expands the size of the court?
Dem President and House. Likely to be able to muster 61 votes in the Senate to ram through young judges.
Read FDR’s Fireside Chat selling his court-packing plan to the American people:
You may have a point.