Some of the most important cases in recent Supreme Court history have been decided by 5-4 votes without a consistent nod toward either conservative or liberal decisions. The balance of the Court hangs on a single vote, so the retirement of just one justice can change the direction of the entire Court. The average age at which the past ten justices have retired is 76, and there are currently four justices on the bench over that age. Our next president could have the opportunity to appoint up to four new justices, a decision that would have a massive impact on the constitutional rights of every American.
Although it is not immediately clear why party affiliation should have any bearing on one’s preferred method of constitutional interpretation, American constitutional law has become partisan. The case that immediately comes to mind is Obergefell v. Hodges, last year’s win for marriage equality. Every Republican candidate in this election cycle has denounced the decision and therefore could be expected to appoint a justice who would strike it down if given the chance. The power to choose a new justice is the power to choose the deciding vote in cases like Obergefell that affect both the abstract rights and daily lives of American citizens.
Marriage equality is only one example of the types of landmark cases that come before the Court and have the potential to change American policy and lives. In 2008, a majority of five decided that gun control laws in D.C. were unconstitutional. The United States continues to lead the world in gun homicide rates after failing to maintain laws to address this grave problem. In 2013, another majority of five eliminated a vital piece of the Voting Rights Act that added an extra layer of oversight for states with a history of disenfranchising voters. The exact same day the Court made this decision, my home state of Texas passed a voter ID law that has been empirically shown to disproportionately affect low-income and minority voters. These Supreme Court decisions concretely affect American citizens’ interactions with justice, and our next president will have the responsibility of determining the nature of that interaction.
On Friday’s anniversary of Roe v. Wade, I was left thinking of efforts in Texas to undo the landmark case that 43 years ago guaranteed women authority over their own bodies. A new Texas law requires doctors in abortion clinics to have admitting privileges in nearby hospitals, a regulation that cut the number of clinics able to perform abortions in half. The Supreme Court has agreed to hear a challenge to this law, and there is no way to predict what they will decide. The rights of thousands of women may be left to a single vote.
We need a president who understands the weight of this responsibility. Hillary Clinton has thoughtfully addressed potential constitutional issues that she would have the ability to affect as president. She supports sensible judicial positions that would strengthen our democracy, like limiting campaign contributions and making it easier, not harder, for Americans to vote. Clinton earned Planned Parenthood’s first-ever endorsement of a primary candidate because she values health care as a human right, not as part of some political establishment. We need a president who takes these issues seriously and looks beyond which positions will earn the most Twitter followers and supports the positions that are right. Clinton has made constitutional justice a priority of her campaign, and I hope that voters will also consider the Supreme Court as they decide whom to support.
-Kate Mosle
Contact Kate Mosle at kmosle ‘at’ stanford.edu.