Obama’s judgement call

I recently asked several of my colleagues (liberals and conservatives alike) to send me a list of the most important Supreme Court decisions since 2000. Twenty decisions made it to most of these lists. They dealt with such issues as the constitutionality of gun control laws, the death penalty, regulations of corporate expenditures in the political process, affirmative action programmes, the right to vote, and the rights of African-Americans, Hispanics, women, gay people, political dissenters, religious minorities, and persons accused of crime.

In these 20 cases, the conservative justices voted together 97 per cent of the time, and the liberal justices voted together 96 per cent of the time. Because there were more conservative than liberal justices, the conservatives were in the majority most of the time. Such an extraordinary degree of polarisation is quite unusual in the Supreme Court, but it is definitely the case at present.

What, then, was at stake in the 2012 presidential election? Because 17 of the 20 cases were decided by a vote of five-to-four, a shift in the makeup of the Supreme Court by even a single justice could have a profound impact on American constitutional law. It would matter greatly whether that new justice was appointed by Mitt Romney or Barack Obama.

Let me offer a few examples. Several years ago, in a case called Citizens United, the Supreme Court, in a five-to-four decision, held that government restrictions on the amount of money that corporations could spend in the political process violated the constitutional guarantee prohibiting government to make any "law abridging the freedom of speech". That decision, endorsed by the five conservative justices, unleashed the spending of hundreds of millions of dollars in the 2012 election. The dissenting justices, the four liberals, argued that this would swamp the electoral process, disillusion citizens, and give corporations undue influence on elected officials. This was a decision of momentous consequence for the American political system. The case would have come out the other way if the court had had five liberals and four conservatives.

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