In a week when the Pundit-Industrial Complex pondered such important questions as who has the best 2016 presidential slogan or what does Ja Rule have to say about the field of candidates, last week’s most important analysis of what is actually at stake in the 2016 election came from the man behind an infamous “oops” moment in the last presidential election. Speaking at a barbecue restaurant in South Carolina, former Texas Gov. Rick Perry (R) explained why the winner of the 2016 election is likely to leave a legacy that will continue for decades after that future president leaves office.
“Something I want you all to think about is that the next president of the United States, whoever that individual may be, could choose up to three, maybe even four members of the Supreme Court,” Perry told the South Carolina audience. So this election “isn’t about who’s going to be the president of the United States for just the next four years. This could be about individuals who have an impact on you, your children, and even our grandchildren. That’s the weight of what this election is really about.”
Perry’s right. Assuming that no justice leaves the Court before the next inauguration, three justices will be over 80 years-old when the next president takes office. Justice Stephen Breyer will be close behind at 78 years old. If the next president replaces all four of these justices, that will give their appointees control over nearly half the Court. No president since Richard Nixon has had this kind of influence over the Court’s membership.
If Hillary Clinton, or someone with similar views, has the opportunity to replace four justices, these new jurists will be joined by the relatively youthful Justices Sonia Sotomayor and Elena Kagan. That’s enough votes to overrule Hobby Lobby, ensure that anti-gay businesses do not gain a right to ignore federal law, reinvigorate reproductive choice, and potentially to shut off the flood of wealthy donors’ money into elections. It would also halt efforts to undermine the Affordable Care Act and shut down other legislation unpopular among Republicans through novel interpretations of the law and the Constitution.
If someone like Perry selects the next slate of four justices, on the other hand, America could be in for a wild ride. Perry has argued that Medicare, Social Security, Medicaid, and federal clean air laws are all unconstitutional. He signed unconstitutional legislation purporting to nullify federal regulation of light bulbs. In a 2010 book, Perry also describes New Deal era Supreme Court decisions permitting labor regulation such as the minimum wage as “the second big step in the march of socialism.”
These notions place Perry to the right of every sitting justices’ stated views. No justice, for example, has publicly claimed that Medicare is unconstitutional. Justice Clarence Thomas has argued, however, that Congress’s power to regulate interstate commerce does not encompass the power to regulate “manufacturing and agriculture.” This is the argument that late-nineteenth and early twentieth century justices used to block federal child labor laws, among other labor regulations. So, if Perry appointed four justices who share his understanding of the Constitution, it is likely that Justice Thomas would provide the fifth vote to declare most national legislation governing the workplace unconstitutional.
Although some GOP presidential candidates have called for similarly radical shifts in constitutional doctrine, not every Republican candidate has. Accordingly, the best benchmark for how the Supreme Court could look if a Republican replaces four justices is probably not Thomas, it is Justice Samuel Alito.
The most recent Republican president, George W. Bush, appointed two justices, Alito and Chief Justice John Roberts. Roberts is a very conservative justice. Since taking the Court’s center chair, he’s torn down barriers to money in politics. He wrote the Court’s decision gutting a key provision of the Voting Rights Act. He’s voted to restrict abortion rights. He joined the majority in Hobby Lobby and in Ledbetter (the Court’s since overturned decision limiting women’s access to equal pay for equal work). And he’s supported decisions enabling businesses to require their workers and consumers to sign away their legal rights as a condition of doing business with that company.
Yet Roberts is widely viewed as insufficiently partisan by groups that have significant influence over Republican base voters — largely because of Roberts’ decision not to repeal the Affordable Care Act. It is likely that powerful forces within the Republican coalition will demand that future Republican presidents do not appoint another justice with Roberts’ thin-but-real independent streak, just as these same forces turned “No More Souters” into a battle cry after President George H.W. Bush appointed Justice David Souter, who turned out to be more liberal than conservative activists had hoped.
Justice Alito, by contrast, is the Court’s most partisan member. Alito authored Hobby Lobby and Ledbetter. He’s spearheaded the conservative bloc of the Court’s efforts to defund public sector unions. And he’s one of the four dissenters who tried and failed to repeal the entire Affordable Care Act. At oral arguments in a still-pending case seeking to gut Obamacare, Alito emerged as a more effective advocate for this effort to strip health care from millions of Americans than the attorney actually arguing the case on behalf of the plaintiffs. During a more recent oral argument on marriage equality, Alito repeatedly compared same-sex marriage to polygamy.
A 2014 study by the Constitutional Accountability Center, a progressive advocacy group that frequently practices before the Court, found that Alito was more likely to side with the U.S. Chamber of Commerce, the nation’s leading lobby group for big business, than any other justice. In a ThinkProgress analysis we conducted shortly after Alito handed down his Hobby Lobby decision, we “contacted several legal scholars and Supreme Court advocates asking if they could identify a single closely divided case where Alito broke with his fellow conservatives to join the liberals.” None of the lawyers we reached out to were able to identify a 5–4 case where Alito signed on with the four members of the Court’s liberal bloc — something that sets him apart from each of the Court’s other conservatives. One lawyer wrote back to our request with just four words, “[n]ope, he’s the worst.”
It’s not possible to predict in advance everything that a Court dominated by five partisans would do to change the law, largely because political parties’ priorities are constantly in flux. President George W. Bush gave the Presidential Medal of Freedom to a judge who later wrote that the first legal case against Obamacare had no basis “in either the text of the Constitution or Supreme Court precedent.” In 2004, the California Supreme Court considered a case that was strikingly similar to Hobby Lobby, yet it ruled in favor of access to birth control. Five of the six justices who formed the majority were Republicans.
It’s not hard to predict some ways that the law would change if there were five justices like Alito on the Supreme Court, however. Roe v. Wade would disappear. Millions of people would likely lose their health insurance, and thousands would die as a result. Religious objectors would gain sweeping new rights to discriminate against LGBT Americans. And civil rights laws would wither — at least when they weren’t invoked by white plaintiffs. As one federal judge said of Alito in 2013, the justice lacks “either understanding or interest” in the discrimination faced by women, African Americans, or Latinos.