What might it mean to have five justices on the Supreme Court who were appointed by Democratic presidents? Since 1970, the year Harry Blackmun received Senate confirmation, there always have been at least five justices appointed by a Republican president on the Court. If Merrick Garland is confirmed to replace Antonin Scalia, he will join Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan as Democratic appointees to the high Court.
Also, the next president, especially if he or she serves two terms, is likely to have three other vacancies to fill on the Court. Since 1960, the average age at which a Supreme Court justice has left the bench is 79 years old. There will be three justices 79 or older in 2017, when the next president is inaugurated. Ginsburg will turn 85, Anthony Kennedy 81, and Breyer 79, all in 2017.
Thinking of a Court where there are five or even six justices appointed by Democratic presidents is tantalizing for those on the left, like me, who have spent their entire careers with a Court that has been decidedly right of center. So, where might it most make a difference?
Abortion rights. Most obviously, Roe v. Wade and the right to abortion would be secure. State laws imposing restrictions on abortions would be far less likely to be upheld. Since 2010, states have adopted about 290 laws limiting access to abortion. These statutes impose regulations on abortion providers, prohibit abortions earlier and earlier in pregnancy, restrict the use of insurance to pay for abortions, limit medicine to induce abortions, and create many other restrictions. These laws likely would not survive review in a Court dominated by Democratic appointees.
Access to the courts. In a series of recent 5-4 decisions, the Supreme Court has made it much harder for consumers and employees to sue businesses. The Court has limited class-action suits and strictly enforced mandatory arbitration agreements that keep people from being able to sue. A Court with five or more Democratic appointees is likely to be much more inclined to rule for consumers and employees and their ability to sue in courts.
Affirmative action. While Scalia was on the Court, there were five justices who wanted to greatly restrict, or even declare unconstitutional, affirmative action by colleges and universities. A Democratic majority on the Court would ensure that educational institutions could continue to use race as one factor among many in admissions decisions to enhance diversity and benefit minorities.
Campaign finance. In recent years, the Roberts Court has struck down a number of federal and state laws regulating campaign finance. Most famously, in Citizens United v. Federal Election Commission in 2010, the Court held that corporations have the right to spend unlimited amounts of money to get candidates for public office elected or defeated. It is likely that a Democratic majority on the Court would overrule this highly controversial decision. Just seven years earlier, in McConnell v. Federal Election Commission, the Court had upheld the very provisions that were declared unconstitutional in Citizens United. A Court controlled by Democratic appointees would likely overrule Citizens United and say that it is returning to its earlier approach.
Congressional power. Conservatives on the Court long have wanted to limit the scope of congressional power. For example, in 2013, in Shelby County, Alabama v. Holder, the Court struck down key provisions of the Voting Rights Act of 1965. This was the first time since the 19th century that the Court invalidated a federal civil-rights law dealing with race. In many states, it has led to significant new obstacles on the ability of minority voters to participate in elections. A Supreme Court with five Democrats would likely reverse this ruling and also be much more likely to uphold congressional power to regulate interstate commerce and to tax and spend for the general welfare.
Death penalty. In 2015, in Glossip v. Gross, Breyer wrote a dissenting opinion, joined by Ginsburg, explaining why the death penalty is unconstitutional. Most expect that Sotomayor and Kagan would come to the same conclusion if there were a fifth vote to end the death penalty.
Establishment Clause. With Scalia on the Court, there were five justices who rejected the idea of a separation of church and state, and were likely to uphold religious involvement in government and government support for religious institutions. For example, in 2014, in Town of Greece v. Galloway, the Court, in a 5-4 decision, held that it was constitutional for a town council to have Christian clergy members delivering Christian prayers virtually every month for almost a decade. A Court with a majority appointed by Democratic presidents is far more likely to strike down religious prayers at government functions, religious symbols on government property, and government support for religious schools.
First Amendment rights of nonunion members. In 1977, in Abood v. Detroit Board of Education, the Court reaffirmed that no one can be forced to join a public employee’s union. But the Court also held that nonunion members could be required to pay the share of the union dues to support the collective-bargaining activities of the union. The Court explained that nonunion members benefit from the collective bargaining in terms of their wages, hours, and working conditions; they should not be able to be “free riders.” The Court, though, said that nonunion members could not be forced to pay the part of the dues that support political activities.
Conservatives have wanted for years for the Court to overturn Abood and hold that nonunion members do not have to pay anything to the unions. It seemed virtually, certain they were going to succeed in Friedrichs v. California, which was argued on January 11. But Scalia’s death deprived them of the essential fifth vote, and on March 29, the Court announced that it was deadlocked 4-4 and would not be able to decide. A Democratic majority on the Court will preserve Abood and be enormously beneficial to unions.
Second Amendment. Until 2008, not once did the Supreme Court find a law to violate the Second Amendment. Then, in District of Columbia v. Heller, the Court, by a 5-4 margin, declared unconstitutional a 35-year-old District of Columbia ordinance that prohibited private ownership or possession of handguns. Scalia wrote the opinion for the Court. A Supreme Court bench with five Democratic appointees will not extend this protection for gun rights and likely would overrule it, returning to the view that the Second Amendment protects only a right to have guns for the purpose of militia service.
Dreaming. The possibility of five or six Democratic justices allows one to imagine what might be done in other areas. Might the Court find a constitutional right to education and conclude that disparities in school funding violate the Constitution? Might the Court find that the racial injustices in the criminal-justice system violate equal protection? For so long, progressives have had to focus primarily on keeping the Court from overturning precedents and limiting rights. Justice Scalia’s death and the coming presidential election allows liberals to dream of how much a different Court could do to advance liberty and justice for all.