The Supreme Court issued its last three opinions of the term this morning. All three were important. All three were decided 5-4. And all three are reminders that no matter what issue you care about, the Supreme Court is a critically important issue in the 2016 elections.
In Arizona State Legislature v. Arizona Independent Redistricting Commission, Justice Ginsburg wrote for a 5-4 majority upholding that state’s voter-passed redistricting reform, in which a commission rather than the state legislature resets district boundaries after each census. She wrote:
The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have “an habitual recollection of their dependence on the people.” The Federalist No. 57, at 350 (J. Madison). In so acting, Arizona voters sought to restore “the core principle of republican government,” namely, “that the voters should choose their representatives, not the other way around.” … The Elections Clause does not hinder that endeavor.
In Michigan v. EPA, Justice Scalia wrote for a 5-4 majority striking down EPA regulations of mercury and other toxins emitted from certain types of electric power plants. EPA studied the issue and determined that these emissions needed to be regulated. Then, in a separate proceeding, it adopted regulations, carefully taking the costs of regulating into consideration in crafting its rules. Notwithstanding that, the five conservative Justices ruled that the EPA had been required to consider costs at the start, in its initial decision on whether regulating these particular emissions was appropriate and necessary.
In Glossip v. Gross, the Court, in an opinion written by Justice Alito, ruled that it is not unconstitutionally cruel and unusual to execute someone by lethal injection using midazolam as the initial drug. That particular drug is supposed to ensure that the person doesn’t feel burning, searing pain when the follow-up drugs causing death are given. There is evidence that the drug does nothing of the sort, so that people endure what Justice Sotomayor in her dissent calls “the chemical equivalent of being burned at the stake.”
These decisions join a host of other 5-4 rulings this term, including
- Obergefell v. Hodges (upholding the constitutional right to marry);
- Texas Department of Housing and Community Affairs v. The Inclusive Communities Project (retaining the heart of the Fair Housing Act);
- Williams-Yulee v. The Florida Bar (upholding Florida's ban on state judicial candidates directly soliciting campaign funds);
- Alabama Democratic Conference v. Alabama and Alabama Legislative Black Caucus v. Alabama (making it harder for state legislatures to adopt redistricting schemes that use race in a way that harms minority voters).
And let us not forget some of the most notorious 5-4 cases of recent years:
- Citizens United (opening the flood gates to untold amounts of money in politics);
- Hobby Lobby (upholding a corporation’s “religious liberty” right to exempt itself from a law protecting women’s health);
- Shelby County (striking down the heart of the Voting Rights Act).
By 2018, four Justices will be in their 80s, meaning there may be several vacancies during the next president’s term. Any replacements could cement a hard-right conservative majority that would extend cases like Citizens United and Shelby County and seek to limit the rights of LGBT people that were gained in Obergefell. Or we could see the end of what our affiliate PFAW Foundation Senior Fellow Jamie Raskin has called The Citizens United Era, so the Court will no longer bend logic and twist the law in order to rule in favor of powerful and corporate interests.
No matter what issue you care about – money in politics, LGBT equality, voting rights, women’s health, the environment, defendants’ rights, the death penalty – the president elected in 2016 will make all the difference, as will the Senate that will either confirm or block the president’s nominees.
On Election Day, it is the Supreme Court that will be on the ballot.