By Curt Levey - The Hill
Texas Insider Report: WASHINGTON D.C. The Supreme Court term that began this week will be remembered not for the important cases already on the High Courts docket but for the four blockbuster cases knocking on the Courts door. The four cases will likely make this the
most important term in decades while focusing Americans on
several of the nations most emotional and divisive issues - illegal immigration health care reform gay marriage affirmative action and overreaching federal power - at the perfect time to influence the 2012 election.
The rulings in those cases and the ages of several Justices will make the Courts legitimacy and future direction prominent campaign issues as well.
When the Obama Administration signaled last week that it wouldnt delay a Supreme Court decision on
the constitutionality of ObamaCare the last piece fell into place for an historic term. Within days petitions for Supreme Court review were filed in Florida v. Health & Human Services in which 26 states are challenging the new health care law. The timing guarantees ObamaCare a dominant role in the election debate.
Similar timing for
the Obama Administrations attack on Arizonas controversial immigration law (United States v. Arizona) wipes out any chance that candidates will be able to sidestep the thorny issue of illegal immigration next fall. In August Arizona Governor Jan Brewer asked the Justices to review the Ninth Circuit decision siding with the Obama Administration. That case along with the ObamaCare case also shine
attention on the federalism issues - state sovereignty and the constitutional constraints on federal power - so important to the Tea Party.
The third big case is Fisher v. University of Texas which challenges minority admissions preferences at UT Austin and presents the Justices with their best chance to narrow or overturn the legal basis for racialpreferences in higher education. Last month plaintiff Abigail Fisher asked the Supreme Court to review the Fifth Circuits decision in favor of the University of Texas.
All three cases if accepted by the Court are very likely to be heard and decided before this Supreme Court term ends next June just a few months before the election.
The fourth blockbuster case Perry v. Brown a challenge to Californias Proposition 8 aimed at establishing gay marriage as a federal constitutional right is unlikely to be decided by the Supreme Court before the election. But if the liberal Ninth Circuit agrees with a lower court that same-sex marriage is indeed a constitutional right the Justices will have little choice but to review the decision. The momentous news that the High Court has decided to determine the fate of gay marriage - and perhaps the dramatic oral argument before the Court - would likely come just a few months or weeks before the nation votes.
Lovers of political drama couldnt ask for a more fortuitous confluence of events: the most emotional issues dividing the nation - illegal immigration gay marriage ObamaCare racial preferences and the legitimacy of federal power - all likely arriving at the Supreme Court during a single presidential election year.
When each case is decided the ruling will strengthen the convictions of the millions of Americans whose views were confirmed by the Court while infuriating millions of others. Theyll see the decision as a moral outrage - a victory for bigotry for example - and a product of the Courts ideological bias.
Consequently these four cases will not only focus candidates and the public on the emotionally charged issues at stake but will also thrust the judges issue - the Supreme Court judicial activism the next Presidents judicial nominations and the Senates 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. Just ask former Senate Democratic Leader Tom Daschle who tried in vain to defend his role in obstructing President Bushs judicial nominees in his 2004 loss to John Thune.
Or ask Karl Rove who said Theres no doubt in my mind that we won races all throughout the country on the judges issue. In 2012 the issue could well decide the battle for control of the Senate.
The electoral focus on judges in 2012 will not be misplaced. The ages of several Supreme Court Justices and the closely divided makeup of the Court means that its ideological balance - and with it the fate of gay marriage abortion illegal immigration and the like - could swing wildly in either direction after 2012.
By 2016 Justices Scalia and Kennedy will be 80 years old. If we assume a 50 percent chance of each man serving through 2016 - better odds than life expectancy and disability tables tell us to expect - there is only a 25 percent probability that both men will do so.
That leaves President Obama if re-elected a 75 percent chance of establishing on the High Court a dependable liberal majority certain to satisfy many of progressives pent-up dreams.
On the other hand Justice Ruth Bader Ginsburg has had pancreatic and colon cancer and will turn 83 in 2016. With four conservatives already on the Court electing a Republican president in 2012 might very well mean the first solid conservative majority on the High Court in 75 years. The conservative Justices would no longer need to court Kennedys swing vote. Abortion on demand affirmative action restrictions on the death penalty and enemy combatants access to civilian courts would likely fall by the wayside.
Curt Levey is a constitutional law attorney and the executive director of the Committee for Justice in Washington DC.
http://thehill.com/blogs/congress-blog/judicial/185121-high-court-will-impact-election
The Committee for Justice is at the forefront in educating the public on the need to return to a constitutionalist judiciary. - former Senate Majority Leader Bill Frist
