Conservatives rightfully fear a second term for President Obama, but seem barely aware of the biggest threat posed by his re-election. Yes, there’s plenty of reason to worry about what Obama will pressure Congress into or do unilaterally through executive orders. However, it’s the third branch of government – the judiciary – that will likely give Obama the greatest opportunity to fulfill his dream of a radical makeover for America. That’s because the United States Supreme Court is at a tipping point unseen since the 1930’s, and Barack Obama will likely be able to tip the Court far to the left if re-elected.
Here are the sobering facts. There are already four solid liberals among the nine Justices on the Court. Of the five center-right Justices, two – Kennedy and Scalia – will turn 80 in the final year of a second Obama term. Should either retire or die, Obama will put a reliable liberal on the Court (no Democratic president has failed to do so since JFK). The result will be a liberal majority on the Court that can do whatever it wants, unrestrained by the precedent and constitutional text that conservative judges look to.
How likely is this nightmare scenario? The following analysis of the probability should provide a wake-up call to any conservatives thinking of sitting out this election.
Although a 76 year old male, like Justice Scalia or Kennedy, will live another 9 years on average, it is unrealistic to assume that either Justice will be willing and able to work until his death. Of the eleven Justices who have left the Court since 1980, only William Rehnquist died on the bench.
The more relevant statistic is the average age at which recent Supreme Court Justices have left the bench. Going back to 1980, the average is 79 years of age. Based on that average, there is a roughly 50% probability that each of the two 76-year-old center-right Justices will leave the Court by the time he reaches age 80 in 2016.
Conservatives like to think that Scalia and Kennedy will do everything possible to wait out an Obama second term. However, Scalia has said that he’ll retire the moment he loses a step intellectually, and it’s hardly clear that the moderate Kennedy is committed to keeping his seat in Republican hands.
Do the math and you see that the probability that both Kennedy and Scalia will serve through the end of an Obama second term is about 25% (50% x 50%). It follows that there is a 75% chance (100% – 25%) that either Kennedy or Scalia will leave the Supreme Court in time for a re-elected President Obama to install a liberal majority on the Court. And that’s before considering the small but non-zero chance that Justice Thomas, Alito, or Roberts will die or retire by 2016.
Think about it: if Obama is re-elected, there’s a 75% chance of a return to the ultra-liberal Warren Court era that began with Earl Warren’s appointment as Chief Justice and persisted, past Warren’s 1969 retirement, into the 1970’s. During that time, the Supreme Court gave us Roe v. Wade, school busing, a ban on the death penalty, and a radical separation of church and state, to name just a few of the Court’s activist excesses. The Obama Court would probably be like the Warren Court on steroids. After all, with many of the excesses of the Warren Court still in place, the Obama Court would be starting from a jurisprudential point farther to the left.
To give people a better feel for what this would mean for America, I looked at the sort of decisions an Obama Supreme Court might issue. I narrowed them down to the ten worst rulings we might plausibly see:
TOP TEN WORST SUPREME COURT RULINGS IF OBAMA IS RE-ELECTED
#10 – A ban on voter ID laws, making it impossible to stop voter fraud.
#9 – Carte blanche for hate-speech laws that ban videos and other expression deemed offensive to Muslims and other minorities.
#8 – Abolition of the death penalty.
#7 – A prohibition on tuition vouchers being used for religious schools, crippling the school choice movement.
#6 – Elimination of all legal limits on racial preferences for minorities.
#5 – A requirement for taxpayer-funding of abortions through the third trimester of pregnancy.
#4 – Invention of a constitutional right to gay marriage that would trump all state laws and religious objections.
#3 – Striking down, as unconstitutional discrimination, any serious attempt to curtail the flow of illegal immigrants into the country or to deny them government benefits.
#2 – Elimination of an individual right to possess firearms.
#1 – Enshrinement of welfare and government-provided healthcare as constitutional rights, thus fulfilling Barack Obama’s dream of a Supreme Court willing to bring about “redistribution of wealth” by “break[ing] free from the essential constraints that were placed by the Founding Fathers in the Constitution.” (quoting 2001 PBS interview with Obama)
To conservatives – and moderates as well – this list of possible Obama Court decisions is the stuff of nightmares and should be motivation enough to go to the polls this Tuesday, November 6th. However, to Barack Obama and other far-left believers in a “living Constitution,” it’s a fantasy wish list (reminding us which of the presidential candidate has the extreme social agenda).
The Supreme Court vacancy that turns Obama’s fantasy into a reality may still be a few years away. But your last chance to ensure it remains a fantasy is this Tuesday.
Curt Levey is a constitutional law attorney and President of the Committee for Justice in Washington, DC. He can be reached at @Curt_Levey on Twitter.