Supreme Court Vacancies & Citizens United

In The Hill, CFJ Executive Director Curt Levey takes a comprehensive look at the many misconceptions surrounding the Supreme Court’s recent campaign finance decision in Citizens United, including the claim that the Court engaged in judicial activism. “Never has a Supreme Court decision been misconstrued by so many people in so many ways,” says Mr. Levey, who concludes that “the ubiquitous descriptions of Citizens United as a sea change are greatly exaggerated.” Levey warns that “Before Congress ‘corrects’ the Court’s ruling, as the President urged during his State of the Union address, it is crucial that a series of misconceptions about the decision be cleared up.”

It may be that urging legislative action was not the President’s only reason for taking on the Supreme Court during his address. Obama may have been throwing the first punch in what is likely to be a huge fight this summer, on the eve of the 2010 elections, over a replacement for Supreme Court Justice Stevens and possibly Justice Ginsburg. While reporting yesterday that “Lawyers for President Obama have been working behind the scenes to prepare for the possibility of one, and maybe two Supreme Court vacancies this spring,” an ABC News article observed that

“Last week, when Obama took the nearly unprecedented step of criticizing the court's opinion in a major campaign finance case during his State of the Union speech, some believed he was showcasing for the American people that presidential elections, and Supreme Court nominations count.”

The article notes the widespread belief that “Justice Stevens, 89, sent a strong signal of his intention to retire when he confirmed for the Associated Press last fall that he hadn't hired a full complement of clerks for next term,” but cautions that “[s]ources close to Ginsburg dismissed retirement speculation.” Speculation about Justice Ginsburg’s retirement springs from her surgery for early stage pancreatic cancer last February. For pancreatic cancer in the earliest stage – the 10% of cases where the tumor is localized and resectable – the five-year survival rate is 16.4 percent, with a median survival time of 17 months.

Another factor to consider is that Ginsburg, arguably the most liberal of the nine Justices, would assumedly like to be replaced by someone with a similar judicial philosophy. That’s more likely to happen if Ginsburg retires this summer. The chances of confirmation for a very liberal Supreme Court nominee will drop significantly next year if, as expected, the GOP makes big gains in the Senate this November.