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Jami FloydBack to OpinionJami Floyd

Huge consequences for post-election Supreme Court

This week in Iowa, the Des Moines Register asked Mitt Romney about abortion. Romney replied, “There’s no legislation with regards to abortion that I’m familiar with that would become part of my agenda.”

Democrats immediately noted that during the Republican primary campaign Romney actually wrote an article headlined, “My Pro-Life Pledge,” in which promised specific legislation. Much of Romney’s political base is pro-life and his campaign quickly clarified that the Republican nominee for the presidency remains proudly pro-life and would support pro-life legislation.

Legislation, yes. But what about the courts, specifically the U.S. Supreme Court?

A few days later, during one of the many feisty exchanges between Joe Biden and Paul Ryan, during the Vice Presidential debate, we got an answer to that question. Almost.

The Moderator, ABC’s Martha Raddatz asked about abortion, in the context religion (both men are Roman Catholic). After responses rooted in the personal, she attempted to pin them down on Roe v. Wade, the Supreme Court ruling establishing abortion rights:

RADDATZ: I want to go back to the abortion question here. If the Romney-Ryan ticket is elected, should those who believe that abortion should remain legal be worried?

RYAN: We don’t think that unelected judges should make this decision; that people through their elected representatives in reaching a consensus in society through the democratic process should make this determination.

BIDEN: The court — the next president will get one or two Supreme Court nominees. That’s how close Roe v. Wade is. Just ask yourself, with Robert Bork being the chief adviser on the court for — for Romney, who do you think he’s likely to appoint? Do you think he’s likely to appoint someone like Scalia or someone else on the court far right that would outlaw — outlaw abortion? I suspect that would happen. I guarantee you that will not happen. We picked two people. We pick people who are open-minded. They’ve been good justices. So keep an eye on the Supreme Court…

Whatever you political views, whether you support Obama or Romney or remain undecided, Joe Biden is right about at least one thing: “Keep your eye on the Supreme Court.”

We don’t think much about the Supreme Court in daily life. And maybe that’s the way the founders intended it when they established this third but equally powerful branch of our federal government. But we should be thinking about them when we step into the voting booth on November 6.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office. (Article Three of the U.S. Constitution.)

In other words, federal judges sit for life. Yet we don’t talk much about these men and women in black robes until a big decision comes down or a seat on the Court opens up. By then, it’s too late to influence the decision of who they might be with our vote.

Consider just a few of the constitutional issues at stake in the coming decade:

    • Abortion. A perennially controversial ruling, Roe v. Wade has never been safe or settled law. Mitt Romney has plainly stated that Roe v. Wade should be reversed. As president, he could all but assure that result, as vacancies arise on the Supreme Court, and Romney-nominated conservatives fill the two seats held by the most liberal justices.
    • Campaign Finance Reform. Citizens United, which prohibited the government from restricting independent political expenditures by corporations, was not the end of the fight for campaign finance reform. This presidential election is on track to cost more than $1 billion. Big donors will very likely gain undue influence with the winner, and super PACs are thriving, thanks to limitless contributions from the rich. Mitt Romney supported the Citizens United decision, while President Obama memorably and publicly criticized the Supreme Court in his 2010 State of the Union address for removing campaign finance restrictions. It is not implausible that a differently constituted Supreme Court would revisit Citizens United and reassess recent decisions that have stripped away restrictions on how elections are financed.
    • Same-sex marriage: Half a dozen states and the District of Columbia have legalized gay marriage; but it’s prohibited elsewhere — with 30 states affirmatively writing bans into their state constitutions. Obama supports legal recognition of same-sex marriage, as adopted by states. Romney opposes same-sex marriage. While the Defense of Marriage Act is before the Court this term, gay marriage is an issue that will continue to make its way to through the federal courts, as same-sex couples fight to establish their constitutional rights.
    • The Second Amendment. We have a problem with guns in this country. It seems not a month goes by that we do not hear about a deadly shooting at a workplace, place of worship or school. The Colorado theater shootings in July the Sikh temple shootings in Wisconsin, in August; the gunfire outside the Empire State Building, just a few days after that. Even after these deadly events, in the middle of the presidential campaign, neither Obama nor Romney had much to say about gun control. (Obama has not offered any gun control measures as president; Romney says new gun laws aren’t needed.) The Supreme Court is divided on the balance between the right to bear arms (which it has established under the Second Amendment) and gun control (which it has said can be a compelling governmental interest). Yet, another critical issue for a new justice to consider – and for us to bear in mind when voting, November 6.

With four septuagenerian justices, the next president will fill at least one Supreme Court seat, and more likely two. Depending on which justices depart, those appointments are bound to dramatically alter the direction of a Court closely split between conservatives and liberals.

Supreme Court nominations are one of most enduring legacies a president has. Consider that President Obama already has made his mark with the appointments of Elena Kagan and Sonia Sotomayor, relatively young women who will likely serve for decades. (The average term is 25 years, the equivalent of six presidential terms.) We can anticipate more of the same, if Obama is reelected. Conversely, Mitt Romney promises justices in the mold of the court’s conservatives, Antonin Scalia, Samuel Alito and, of course, Chief Justice John Roberts.

Since our founding, the Supreme Court has made decisions that impact American life in significant ways – from Marbury v. Madison which established the boundaries between the constitutionally separate executive and judicial branches of the American form of government, to the Miranda decision which found our right against self-incrimination inherent in the Fifth Amendment, to Brown v. Board of Education which declared that segregated schools were inherently unequal. Recently, big decisions on health care, gun rights and abortion have turned on 5-4 votes.

The implications for issues such as same-sex marriage, the establishment of religion, affirmative action, the rights of women, voting rights, the death penalty, gun control, and criminal justice are enormous. The stakes in the 2012 election for the future direction of the Supreme Court – and the country – are immeasurable.