Similar timing for the Obama Administration’s attack on Arizona’s controversial immigration law (United States v. Arizona) wipes out any chance that candidates will be able to sidestep the thorny issue of illegal immigration next fall. In August, Arizona Governor Jan Brewer asked the Justices to review the Ninth Circuit decision siding with the Obama Administration. That case, along with the ObamaCare case, also shine attention on the federalism issues – state sovereignty and the constitutional constraints on federal power – so important to the Tea Party.
The third big case is Fisher v. University of Texas, which challenges minority admissions preferences at UT Austin and presents the Justices with their best chance to narrow or overturn the legal basis for racial preferences in higher education. Last month, plaintiff Abigail Fisher asked the Supreme Court to review the Fifth Circuit’s decision in favor of the University of Texas.
All three cases, if accepted by the Court, are very likely to be heard and decided before this Supreme Court term ends next June, just a few months before the election.
The fourth blockbuster case, Perry v. Brown, a challenge to California’s Proposition 8 aimed at establishing gay marriage as a federal constitutional right, is unlikely to be decided by the Supreme Court before the election. But if the liberal Ninth Circuit agrees with a lower court that same-sex marriage is indeed a constitutional right, the Justices will have little choice but to review the decision. The momentous news that the High Court has decided to determine the fate of gay marriage – and perhaps the dramatic oral argument before the Court – would likely come just a few months or weeks before the nation votes.
Lovers of political drama couldn’t ask for a more fortuitous confluence of events: the most emotional issues dividing the nation – illegal immigration, gay marriage, ObamaCare, racial preferences, and the legitimacy of federal power – all likely arriving at the Supreme Court during a single presidential election year.
When each case is decided, the ruling will strengthen the convictions of the millions of Americans whose views were confirmed by the Court, while infuriating millions of others. They’ll see the decision as a moral outrage – a victory for bigotry, for example – and a product of the Court’s ideological bias.
Consequently, these four cases will not only focus candidates and the public on the emotionally charged issues at stake, but will also thrust the “judges issue” – the Supreme Court, judicial activism, the next President’s judicial nominations, and the Senate’s role in scrutinizing those nominees – to the forefront of the 2012 campaign debate.
Not just the presidential campaign. History tells us that the judges issue often plays an influential role in Senate races. Just ask former Senate Democratic Leader Tom Daschle, who tried in vain to defend his role in obstructing President Bush’s judicial nominees in his 2004 loss to John Thune.
Or ask Karl Rove, who said “There's no doubt in my mind that we won races all throughout the country [on the judges issue].” In 2012, the issue could well decide the battle for control of the Senate.
The electoral focus on judges in 2012 will not be misplaced. The ages of several Supreme Court Justices and the closely divided makeup of the Court means that its ideological balance – and with it, the fate of gay marriage, abortion, illegal immigration and the like – could swing wildly in either direction after 2012.
By 2016, Justices Scalia and Kennedy will be 80 years old. If we assume a 50 percent chance of each man serving through 2016 – better odds than life expectancy and disability tables tell us to expect – there is only a 25 percent probability that both men will do so.
That leaves President Obama, if re-elected, a 75 percent chance of establishing on the High Court a dependable liberal majority certain to satisfy many of progressives’ pent-up dreams.
On the other hand, Justice Ruth Bader Ginsburg has had pancreatic and colon cancer and will turn 83 in 2016. With four conservatives already on the Court, electing a Republican president in 2012 might very well mean the first solid conservative majority on the High Court in 75 years. The conservative Justices would no longer need to court Kennedy’s swing vote. Abortion on demand, affirmative action, restrictions on the death penalty, and enemy combatants’ access to civilian courts would likely fall by the wayside.
Curt Levey is a constitutional law attorney and the executive director of the Committee for Justice in Washington, DC.