PUBLISHED: November 13, 2024 | www.baltimoresun.com
Policies expire, laws and executive orders get repealed. Some stay in place for decades, yet such permanence is never guaranteed. A president’s appointment of a Supreme Court justice is the singular action that guarantees the most broad and enduring legacy for any president and it represents the pinnacle of presidential accomplishments.
According to Article III of the U.S. Constitution, federal judges, including Supreme Court justices, are appointed to serve “during good Behaviour,” which has been construed to mean “for life,” unless impeached by the House of Representatives and convicted by the Senate. This means that when a Supreme Court justice, one of the nine members of the court with ultimate authority on constitutional and federal law interpretations, among other things, is appointed by a president, the Constitution and other significant matters will be construed in a manner most favorable to the president. Since 1970, justices have served for an average of 28 years. That equates to seven presidential terms during which a president’s impact will be felt through his Supreme Court appointments.
Consequently, the impact of Donald Trump on the nation has been evident throughout the Biden/Harris administration. Trump achieved a significant victory during his first term with the appointment of three justices who have shifted the balance toward a constitutional and legal interpretation that aligns more closely with conservative perspectives. Even today, the Supreme Court bears the legacies of Presidents George H.W. Bush, George W. Bush and Barack Obama, whose final full years in office were 1992, 2008 and 2016, respectively.
Our nation, and indeed the world, has undergone significant transformations since 1992, 2008 and even 2016. Nevertheless, in many respects, the presidents of those eras continue to exert significant influence today, manifested through the most important judges in the United States.
Supreme Court justices, and indeed all judges, are apolitical in a significant way. Although 70% of Americans believe that the justices of the Supreme Court render politically motivated decisions rather than impartial ones, this assertion is fundamentally inaccurate. People, including attorneys, conflate canons of judicial interpretation with political ideology. That is because the outcomes of these interpretative canons for so-called conservative justices typically correspond with conservative values, whereas the outcomes for so-called liberal justices align with liberal values.
Conservative justices are perceived as more right-leaning because the left constantly compels them to establish new liberal ideals as fundamental rights that are protected by the Constitution under the Fourteenth Amendment. The assertion that these are not fundamental rights is not inherently political; rather, it indicates a reluctance to impose these definitions of fundamental rights on 300 million Americans, especially when those rights were never contemplated by the drafters of the Fourteenth Amendment.
Politicizing the Supreme Court has become a common practice among politicians, to the extent that there is currently a covert struggle, reports indicate, to remove Justice Sonia Sotomayor following Trump’s victory in order for Biden to elevate a new justice to replace her before Trump and the new Republican Senate majority take power.
Sotomayor is part of the Supreme Court’s liberal faction and is generally perceived as the most liberal member, particularly in contrast to the right-leaning Justice Samuel Alito, who is regarded by some as the court’s most conservative justice. Even looking at the high court one-dimensionally through rulings alone — which is what the public and the media do anyway — the heavily referenced Martin-Quinn Score, a metric that attempts to determine the political ideology of Supreme Court justices, reveals that Sotomayor exhibited a leftward lean of -4.085, whereas Alito demonstrated a rightward lean of +2.588 during the 2022-2023 term, with 0 being politically neutral. So, Justice Sotomayor was 1.6 times as far to the left as Alito was right. To be clear, the Martin-Quinn score only takes into account the way a judge rules and does not take into account the interpretation of the law, something the metric has been heavily criticized for.
Sotomayor is 70 years old and will be 74 by the conclusion of Trump’s final term. She is also a Type 1 diabetic, which exacerbates the potential challenges associated with aging.
Democrats are still reeling from the death of Justice Ruth Bader Ginsburg during Trump’s presidency, which occurred after she resisted calls to step down, and the likelihood of Trump securing a fourth appointment is significantly greater than Democrats would prefer. Consider the potential scenario in which Justices Alito and Clarence Thomas might resign strategically during Trump’s presidency, thereby allowing Trump to appoint new, young justices who share their interpretative philosophies. Furthermore, Republicans will hold a Senate majority, so any nominee from Trump is likely to receive swift confirmation.
However, reports indicate that Democratic officials are reluctant to advocate for Sotomayor’s resignation, as many perceive such calls as ableist. Furthermore, they consider these demands potentially misguided, given the uncertainty of her confirmation prior to Trump’s appointment despite the Democratic majority, which includes four independents in its caucus. All told, no senator seems willing to put their reputation behind the move.
For Democrats, this election represented more than a mere return to power for Trump and the Republicans for another four years; it signified the potential establishment of a robust, youthful, conservative majority in the Supreme Court for three decades or longer. If Trump prevails, he may oversee four to six Supreme Court appointments, firmly establishing a conservative majority in the court for decades.
Armstrong Williams (www.armstrongwilliams.com; @arightside) is a political analyst, syndicated columnist and owner of the broadcasting company, Howard Stirk Holdings. He is also part owner of The Baltimore Sun.
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