Here are a few articles that caught our attention during the week just ended.
NRA on the Supreme Court
“The National Rifle Association is already jumping into the 2012 election, warning that a Democratic Senate and reelected president could get a shot at changing the political makeup of the Supreme Court and raining a hail of gun fire on the Second Amendment. ‘We can’t afford a strategy of praying for the health of five Supreme Court justices,’ said Chris Cox, director of the NRA’s Institute for Legislative Action. … ‘The Supreme Court is certainly running in every Senate race in the country.’”
We agree with the NRA’s assessment. In an October 2011 op-ed in The Hill, CFJ’s Curt Levey warned that both the emotionally charged issues knocking on the Supreme Court’s door and the ages of several Justices would
“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.”
Since that prediction, ObamaCare, racial preferences, and Arizona’s immigration law have been added to the Supreme Court’s docket.
Dreams and Nightmares about Obama Reelection
Last week, the Washington Post
reported on what President Obama’s allies and critics are dreaming about or dreading if he is reelected:
“If President Obama wins a second term, he will finally endorse same-sex marriage. Gay rights groups are almost certain. He will also make a new, historic effort to fight climate change — environmentalists are pretty sure. And Obama will finally do just what the Congressional Black Caucus wants. According to some members of the Congressional Black Caucus. Conservative groups are equally confident that Obama, freed from the fear of losing his reelection bid, would deliver on far-reaching left-wing dreams. … Newt Gingrich envisions a ‘war’ on the Catholic Church. The National Rifle Association predicts a crackdown on gun owners.”
However, the Post concludes that “both the dreams and the nightmares may turn out to be overblown. To enact the changes liberals want … he would need a strongly liberal Congress. And that’s not likely.”
Not likely to get done legislatively. But quite likely to get done by judicial fiat if Obama is reelected. He need only replace either Justice Scalia or Justice Kennedy – they would be 80 years old at the end of Obama’s second term – to establish a dependable liberal majority on the High Court certain to satisfy many of progressives’ pent-up dreams and many of conservatives’ nightmares.
Consider the issues discussed by the Post. A constitutional right to gay marriage, a hollowing out of gun rights, and a free hand for the EPA to unilaterally regulate climate change would be virtual certainties given a liberal Court majority. Racial preferences and racial gerrymandering – strongly supported by the Congressional Black Caucus – are in danger in today’s Supreme Court, but would get the Court’s blessing if Obama appoints a fifth liberal Justice. And voter ID laws, the bane of the Black Caucus, would be dead on arrival at the Obama Court, as would any challenge by the Catholic Church to the HHS contraception mandate.
Diversity on the Supreme Court
The Washington Post
also reported last week on a study by law professor Benjamin Barton, which found that the collective backgrounds of the current Supreme Court Justices are unusual in a number of "not particularly flattering" ways. In Barton’s words, the Justices’ backgrounds are characterized by “cloistered and neutral experiences [that] offer limited opportunities for the development of the most critical judicial virtue: practical wisdom.” The result is a lack of genuine diversity on the Court.
Barton notes that four of the five boroughs of New York City are represented on the current Supreme Court, while no state between the coasts can claim a single Justice. Moreover, “Roberts Court justices have spent more pre-appointment time in legal academia, appellate judging, and living in Washington, D.C. than any previous Supreme Court. They also spent the most time in elite undergraduate and law school settings.”
In this age of diversity, how did we wind up with a Supreme Court with as little genuine diversity as a Princeton eating club? We suspect it has a lot to do with the politically correct focus on race and gender as the hallmarks of diversity. The nation’s intellectual elites were so busy patting themselves on the back for increasing the racial and gender diversity of the Supreme Court that they neglected to pay any attention to assembling a Court with an actual diversity of backgrounds.
That mistake should be a lesson not only for the next President making a Supreme Court appointment, but also for the nine Justices as they consider this fall whether diversity of skin color is so essential to intellectual diversity and learning on campus that it can justify explicit racial discrimination in admissions (see Fisher v. University of Texas).