The Supreme Court is still up for grabs, and the only candidate for the job is a supposed moderate nominated by Obama. When liberals nominate a moderate, remember that they’re nominating someone they consider to be a moderate.
As Reason’s A. Barton Hinkle points out, “President Obama’s first Supreme Court pick, Sonia Sotomayor, was called a “moderate,” too—or, at most, a “moderate liberal.” Same story with Elena Kagan. Those two Justices have since become the Court’s left-wing anchors.”
What will the Court look like if the current nominee, Merrick Garland, turns out to be another liberal activist judge? According to the center-left The Atlantic, here are just five changes you can expect:
- Affirmative action. While Scalia was on the Court, there were five justices who wanted to greatly restrict, or even declare unconstitutional, affirmative action by colleges and universities. A Democratic majority on the Court would ensure that educational institutions could continue to use race as one factor among many in admissions decisions to enhance diversity and benefit minorities.
- Abortion rights. Most obviously, Roe v. Wade and the right to abortion would be secure. State laws imposing restrictions on abortions would be far less likely to be upheld. Since 2010, states have adopted about 290 laws limiting access to abortion. These laws likely would not survive review in a Court dominated by Democratic appointees.
And if the country isn’t lawsuit happy enough..
- Access to the courts. In a series of recent 5-4 decisions, the Supreme Court has made it much harder for consumers and employees to sue businesses. The Court has limited class-action suits and strictly enforced mandatory arbitration agreements that keep people from being able to sue. A Court with five or more Democratic appointees is likely to be much more inclined to rule for consumers and employees and their ability to sue in courts.
- Congressional power. Conservatives on the Court long have wanted to limit the scope of congressional power. A Supreme Court with five Democrats would likely reverse this ruling and also be much more likely to uphold congressional power to regulate interstate commerce and to tax and spend for the general welfare.
- Death penalty. In 2015, in Glossip v. Gross, Breyer wrote a dissenting opinion, joined by Ginsburg, explaining why the death penalty is unconstitutional. Most expect that Sotomayor and Kagan would come to the same conclusion if there were a fifth vote to end the death penalty.
While Obama will complain about Republicans obstructing the process by shooting down whoever he nominee, Obama is the first President since LBJ who tried to push through a nominee this close to an election.
And when he tried that, the Senate shot him down.
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