The Supreme Court in presidential elections

On Sunday, the panel discussed the implications of the 2012 presidential election on the Supreme Court of the United States (SCOTUS) appointments as several of the justices are well into their seventies. Because many recent decisions have been 5-4 splits, the next president will have almost unprecedented power in deciding the makeup of SCOTUS for many years to come, perhaps even several generations.

This is a very big deal, but neither candidate is talking about it. Neither is the mainstream media and as such, it is not a vein of discourse in the general electorate. I think the candidates are not talking abut SCOTUS because it is a “glaze-over” topic for most people. I think I know why.

The average citizen sees SCOTUS as the ultimate referee in cases where Congress passes a bad law that deprives citizens of their rights. They see SCOTUS as something that restores their rights from bad laws, meaning different things, depending on what you think of the law being overturned or upheld.

I believe there is a general feeling that once SCOTUS has ruled that citizens have a certain right, it is guaranteed to them in perpetuity; like the right to vote, civil rights regardless of race, the right to have an abortion, the right to health care.

They do not realize that unless it is explicit in the US Constitution, any right “guaranteed” by a SCOTUS ruling can be overturned by a later court. Even rights that are explicit in the US Constitution can be alternatively interpreted by a later Court to mean something else, like a ruling on the right to vote being limited by the States’ use of ID laws NOT explicitly targeted to those things enumerated in the fifteen, nineteenth, twenty-sixth and twenty-fourth amendments.

We are perilously in danger of losing some basic rights generations prior have fought and died to secure. As we have seen in the recent GOP debates and in personhood amendments in the States, Roe v Wade is not only about abortion rights, but in contraception choices and a women’s right to choose her own health care. But I suspect there are millions of women — especially younger ones — who believe they will always have the right to contraception and abortion in the United States of America.

They are wrong. The next president could very well appoint a justice who swings that right guarantee to a 6-3 decision, ending a “guaranteed” right in a heartbeat.

Am I wrong?



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