speech to the NRA today. The stuff on four more years of Obama meaning forty more years of an Obama Supreme Court was pretty good for his intended audience, though I think that a focus on specific issues would help Romney more with both right-leaning and swing-voters. If any of the five not-consistently-liberal Justices leave office during an Obama presidency, we are going to have a solid 5 vote liberal majority on the Court (it is also possible that Ruth Bader Ginsburg might retire during a second Obama term and let him appoint a younger liberal Justice.) Anthony Kennedy and Antonin Scalia are 75 and 76. I wish them all very long lives and good health (Justice Ginsburg too), but who wants to bet that the five not-consistently-liberal Justices will all stay on - or be able to stay on - through a second Obama term? It is very possible that they would all stay on, but I’d prefer not to have to see how such a bet would turn out.
So what would it mean to have a Supreme Court where Stephen Breyer was the ideologically median Justice? Off the top of my head I’m guessing that HELLER and MCDONALD V. CHICAGO would likely be reversed. Obama’s first Supreme Court nominee (Sonia Sotomayor) voted against incorporating the Second Amendment against the states. I don’t expect Kagan to vote any different if the issue came up. Obama doesn’t talk much about gun control, but he is one Supreme Court pick (if it is for any of the five not-consistently-liberal seats) away from a Supreme Court ”collective right” interpretation of the Constitution. One more liberal Supreme Court Justice also means that overturning (or even the eroding) of ROE is much more difficult and lengthy. It also means a more radicalized abortion jurisprudence. Say goodbye to the federal (and any attempted state) prohibitions on partial birth abortion.
So that is some of what an Obama second term might mean for the Supreme Court. What does Romney mean when it comes to the Supreme Court? I dunno. The cynical take is that he will do what he finds expedient. Let’s go with that one for the sake of argument. I’d rather take my chances with Romney gaming out the politics of who to name on the Supreme Court than a second term Obama having the “flexibility” to pick a Supreme Court Justice (or Justices) that suited his ideological preferences. I don’t like that choice, but it is the choice we have and I don’t see how it is close.
As a political matter, Romney would do well to hit, with specificity, on the policy implications of an Obama Supreme Court. If he can frame the issue as an Obama reelection meaning a) the end of constitutional Second Amendment protections, b) the return of partial birth abortion and c) a Commerce Clause interpretation in which Congress can force anyone to contract with a private company to buy a product they don’t want, then Romney has a strong case that he can take to both conservatives who might be leery of him and to swing voters who are leery of judicial liberalism (to the extent they are reminded what judicial liberalism means in practice.)
