On: The quiet game

It has been two months since the Supreme Court effectively ended the debate on the Affordable Health Care Act, which is more time than necessary for attention to our oft-forgotten third branch to wane.

But for a moment, let’s refocus.

In Federalist 78, James Madison, detailing his architecture of the American government, wrote that “the judiciary, from the nature of its function, will always be the least dangerous to the political rights of the constitution” because it has “neither force nor will, but merely judgment”.

Use of the adjective “merely” is unfortunate due to the inadvertent implication that the power of the judiciary is miniscule in comparison to its counterparts. In reality, being as their judgment regards the “political rights of the constitution,” the judiciary can indirectly shape American policy, for they are the final determinants of what are, and are not, suitable undertakings for the legislative and executive branches.

Case in point: it was May 17, 1954 when, after years of debate, the Supreme Court finally announced their historic ruling on Brown v. Board of Education, irrevocably altering America for the better.

Anti-segregationists, history tells, caught their break nine months earlier.

On September 8, 1952, then-Chief Justice Fred Vinson unexpectedly suffered a fatal heart attack. In response, Associate Justice Felix Frankfurter candidly mentioned to one of his clerks, “This is the first indication I have ever had that there is a God.”

Unfeeling words, but perhaps not untrue. Chief Justice Vinson was one of five justices who could reliably be counted upon to uphold the “separate but equal” doctrine, enshrined as constitutional nearly 50 years prior in Plessy v. Ferguson.

The Chief Justice’s  death, tragic as all death is, was serendipitous, given that it allowed President Eisenhower to replace him with Earl Warren, who was much more sympathetic to the pleas and legal arguments of anti-segregationists. When the case was argued before the Warren court, Chief Justice Warren managed to convince his fellow justices of his convictions and secure a unanimous ruling.

This, and other historical vignettes, underscore the importance of the judicial branch, and therefore the special attention which must be paid to the judicial philosophies of those campaigning to become Commander-in-Chief. Since it is the president’s job to appoint judges to the higher and lower courts for lifelong terms, it is his beliefs which will be reflected in these appointments, and his beliefs which will hold their roots in American jurisprudence for some time afterward.

Call it the political quiet game, the equivalent of a patient move in chess: It may lack the bombast of other techniques, but it is unquestionably effective, and immeasurably important.

If, for example, Michael Dukakis and not George Bush, Sr. had won the 1988 presidential election, liberal justice Thurgood Marshall (the man who successfully argued Brown v. Board of Education 37 years earlier) would have been replaced by a like minded left leaning judge. Instead, Justice Marshall’s empty seat went to conservative Clarence Thomas.

The result: Citizens United v. Federal Election Commission, Walmart v. Dukes, and, crucially, Bush v. Gore were all decided in favor of the current conservative majority.

Who on the left wouldn’t prefer another liberal on the Supreme Court when, in their next term, it reexamines the constitutionality of Section Five of the Voting Rights Act, considers the  race based admissions process at the University of Texas, and whether or not gay marriage is a constitutionally protected right? What happens if abortion comes up again?

One election would have secured a liberal majority in the Supreme Court for the next fourteen years.  That same election ensured the opposite.

Worse, a recent article from the New York Times tells that, after nearly four years in office, “President Obama is set to end his term with dozens fewer lower-court appointments than both Presidents Bill Clinton and George W. Bush achieved in their first four years.” 

Part of this is undoubtedly allayed by the president’s  two superb Supreme Court picks, Justices Sotamayor and Kagan. The two newest members of SCOTUS have voted together 94 percent of the time as reliable members of the court’s left wing.

But now, the court has three justices over the age of 75: Scalia and Kennedy at 76 and Ginsburg at 79. Stephen Breyer is 74.

Some presidents don’t have the opportunity to nominate Supreme Court justices. The next president may have the ability to shape the court for several presidencies to come.

For this reason and others, the upcoming election is important.