It’s the Court, Stupid!

Written by William Kurtz

The Supreme Court sits at the very top of the governmental pyramid which controls our lives.

Of all of the massive deconstruction of the practical meaning of the Republicans’ maintenance of majority control of the House of Representatives and of their gaining of majority control of the Senate, no comment that I have seen discusses the effect of that control over the everyday life of every American citizen.

Here it is, in a nutshell: Article II Section 2 of the Constitution provides that

“The President…by and with the Advice and Consent of the Senate…shall appoint…Judges of the Supreme Court.”

This is understood to mean “a majority of the members of the Senate present for the vote,” and that a proposed appointment cannot go forward without such consent having been obtained.

The decisions of the nine-person Supreme Court can have an enormous impact on our lives. Consider the impact of “Obamacare,” for example. Four of the Justices opined that “Obamacare” is Constitutional; four of them opined that it is Unconstitutional.

The Chief Justice opined that it was Unconstitutional on several grounds, but he found a way to call it Constitutional on the basis that it imposed a “tax” – even though its proponents had gone to great lengths to deny that the “mandatory payment” part of “Obamacare” is a “tax.”  So, “Obamacare” is the law of the land by a 5 to 4 decision of the Supreme Court, and one of those 5 “yes” votes, the vote that saved the day, was that of a Chief Justice who found it Unconstitutional on several bases but who nevertheless went to great lengths to find an Act of Congress “Constitutional” by calling one of its signature provisions a “tax,” even though the proponents of the Act always denied that it was any such thing.

So, it was the strained interpretation of the Act by ONE MAN which resulted in “Obamacare in action” as we observe and experience it today. This is just one example of the heavy impact that decisions of the Supreme Court can have on our lives.  Not all of the stuff that the Court decides is arcane and inconsequential.  Some of it really makes a difference in the way we live, on the extent of control over our lives, in the amount of “space” between the government and the citizen, which seems to be constantly shrinking.

If the makeup of the Court had been even slightly less “liberal” when considering “Obamacare,” even to the extent of even one less “liberal” Justice and one more “middle of the road” or “Conservative” Justice, the result would most likely have been a majority finding that “Obamacare” is Unconstitutional.

For example, if the nomination of either Justice Sotomayor or Justice Kagan, both “liberal” Justices, were to be presented to the Senate as it will soon be constituted, those nominations would quite possibly fail for lack of a majority vote. It is conceivable that President Obama will have the opportunity to nominate a Justice of the Supreme Court during the final two years of his Presidency. Justice Ginsburg is 81, and has survived two bouts with cancer. She indicated a year or two ago that she has every intention of staying on the job. She’s a strong-willed lady.  I’m not aware of any comment that she may have made since the results of the election became known. Even so, circumstances may change, and she may change her mind.

Further, one or more of the other Justices may decide to retire. Here’s the point: If the opportunity were to arise for President Obama to nominate a new Justice of the Supreme Court, in order forthe candidate to be approved by a majority vote of the new Senate he or she would have to be significantly to the “right” of the present four-Justice “liberal bloc” (Justices Breyer, Ginsburg,Sotomayor, and Kagan). Practically speaking, that would significantly constrain the President’s range of choices for the nomination. He would encounter a bruising fight in the Senate, and quite likely rejection of the nomination, if he were to put forward a “duplicate” of Justice Ginsburg, or of Justice Sotomayor, or of Justice Kagan. Republicans’ majority control of the new Senate can make a big difference, at the very top of the governmental pyramid that controls our lives.

What could be the most important aspect of the 2014 election?  “It’s the Court, Stupid.”