WASHINGTON — The Supreme Court is not on the ballot in November, but its future direction on issues such as abortion, gay rights, gun rights, voting laws and the role of money in politics depends on who is elected president for the next four years.
The justices, who open their annual term Monday, are closely split along ideological lines. The current court has four liberals appointed by Democrats, four conservatives appointed by Republicans, and a centrist Republican in 76-year-old Justice Anthony M. Kennedy.
The court’s makeup means that a President Mitt Romney could tip the court decisively to the right if he were to replace liberal Justice Ruth Bader Ginsburg, 79, with a conservative. Similarly, a re-elected President Obama could tilt the court to the left if he were to replace Kennedy or Justice Antonin Scalia, 76, with a liberal.
“A change in the ideology of only one justice could have a profound effect on the course of constitutional law,” said professor Geoffrey Stone at the University of Chicago Law School, where Obama formerly taught. An Obama win “could bring about a significant — and in my view, healthy — change in the direction of the court,” he said.
Clint Bolick, a lawyer for the Goldwater Institute in Phoenix, is not rooting for an Obama victory, but he agrees the election could have a lasting effect on a closely split court. “The average justice remains in office nearly 25 years — more than six presidential terms. Supreme Court nominations are one of most enduring legacies a president has,” he said.
Obama’s two appointees — Justices Sonia Sotomayor, 58, and Elena Kagan, 52, — have generally liberal voting records so far. Sotomayor was in the minority in the 5-4 decision in the Citizens United case, which freed corporations and unions to independently spend unlimited sums on campaign ads, and Kagan opposed it when she served as solicitor general.
Given one more liberal vote, the court would likely switch directions on campaign money and uphold laws that limit election spending and require the full disclosure of donors. With an extra conservative vote, however, the justices on the right are likely to go further and free big donors — including corporations — to give money directly to candidates and parties.
The law on abortion could also switch with a change of one justice. With an extra vote on the right, the six Republican appointees would likely uphold strict regulation of abortion, and possibly, a criminal ban. With an extra vote on the left, however, the liberal bloc could strike down state or federal regulations that limit abortions or restrict abortion doctors.
This term, the court is being asked to rule for the first time on gay marriage, another issue likely to split the court on ideological lines.
Two separate questions are pending. The first concerns the rights of legally married gay couples. Several judges have struck down part of the Defense of Marriage Act, or DOMA, and ruled that the federal government may not deny equal benefits to same-sex couples who were married in states such as Massachusetts and Connecticut.
When the Obama administration refused to defend this provision, the House Republicans took up the cause. The justices have before them several appeals and are likely to decide in November which case to take up.
Also pending is California’s Proposition 8 and the question of whether the U.S. Constitution gives gay couples a right to marry. After the California Supreme Court ruled for gay marriage in 2008, opponents put on the ballot and won approval for Proposition 8, which amended the state’s Constitution and restricted marriage to the union of a man and a woman.
In February, however, the 9th U.S. Circuit Court of Appeals struck down Proposition 8 in a 2-1 decision. The opinion by Judge Stephen Reinhardt did not say the U.S. Constitution gave gays and lesbians a right to marry in every state. Instead, he said California violated the Constitution by taking away a right to marry after it had been briefly granted.
The sponsors of Proposition 8 have an appeal pending before the high court (Hollingsworth vs. Perry). The justices have put off a vote on it and are likely to consider it in November in conjunction with the DOMA cases.
In the court’s private conference, it takes four votes to grant an appeal, but five votes for a majority ruling. The conservatives and liberals may be wary of granting the appeal in the Proposition 8 case because they may not be sure where Kennedy would come down.
There are three options. The justices could turn down the appeal, which would clear the way for gay marriage to resume in California. They could decide to hear the case because a federal court has voided a state constitutional amendment approved by the voters. Or, as many experts predict, they could opt to delay a decision on Proposition 8 until they have ruled on the DOMA cases.
Also pending are two major race-related issues. On Oct. 10, the court will hear a case from the University of Texas to decide whether to limit or end race-based affirmative action at colleges and universities. Kennedy and the court’s conservatives have been steadily skeptical of policies that treat people differently because of their race.
The court’s conservatives are also skeptical of the part of the Voting Rights Act of 1965 that puts much of the South under Washington’s scrutiny. Because of their history of racial discrimination, these states may not revamp their election laws until they convince the Justice Department or a panel of judges that proposed changes would not have a discriminatory effect on blacks or Latinos.
Texas and South Carolina failed that test earlier this year when they sought to put into effect new voter ID laws. Quite similar laws went into effect in Northern states, including Pennsylvania, which are not subject to this part of the Voting Rights Act.
The justices will decide soon whether to hear an appeal from the South and decide whether what is widely regarded as one of the most effective civil rights laws of the 20th century has outlived its time.