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Gridlock in Washington never has been worse. Partisan politics and refusal to compromise have diminished the power of both the Congress and the presidency, and little is getting done. American voters seem to prefer gridlock, as they keep voting for it every few years. The 2016 elections look like more of the same, with the Republicans likely to keep the House, the Democrats slightly favored to take back the Senate, and a presidential election that is anyone’s guess at this time.
Out of this Potomac gridlock, the Supreme Court has emerged as the most powerful branch of the federal government. With nine justices, it takes only five votes to rule on a case to have a dramatic impact on American life. Recent decisions on same-sex marriage, the Affordable Care Act, and the use of certain death-penalty drugs are just a few of the weighty decisions handed down just this year in razor-thin votes.
And let’s not forget in late 2000 in a 5-4 decision, the court handed George W. Bush the presidency (by about 300 votes in Florida) when it decided the Florida Supreme Court had failed to properly apply Florida law and overruled it. Most of the real power that matters in Washington is now wielded by these nine robe-wearing lawyers.
The current court is composed of five justices appointed by Republican presidents and four by Democrats. Of the five Republican appointees, four of the justices, referred to as “conservatives,” regularly seem to vote as a bloc on the most controversial issues, as do the four Democratic “liberal” appointees.
This has left Justice Anthony Kennedy to cast the deciding vote on most of the hot-button issues, making him the most powerful figure in Washington. Although a Republican appointee, Kennedy sided with the liberal bloc slightly more than the conservative bloc this past session on the close-call cases.
When it comes to raw D.C. power and impact on our day-to-day lives, the most important question in next year’s presidential election is, who will have the power to appoint the next wave of Supreme Court justices for potentially the next eight years? Since World War II, America usually gives our presidents two terms—unless you were Jimmy Carter or George H.W. Bush. We can safely assume the 2016 victor could have this important power to appoint justices through 2024.
And how many Supreme Court vacancies might the 2016 victor fill? On the day of his or her inauguration in January 2017, three justices already will be octogenarians, with Ruth Bader Ginsburg 83, Anton Scalia 80, and the great and powerful Anthony Kennedy 80. Justice Stephen Breyer will be close, at 78.
It is within the realm that the new president could appoint up to four justices. If that next president is a Democrat like Hillary Clinton, the court’s liberal majority could swing to 6-3. If it’s a Republican like Jeb Bush, the conservative majority could grow to 7-2. But even two or three appointments would have a similar impact. Either way, this type of appointing power would be the most far-reaching development to come out of the next eight years of the president’s reign in a still-gridlocked Washington.
When Americans go to the polls in 2016 to vote for president, the most astute will realize that the most important question to ask is, whom do you want appointing men and women to the Supreme Court for the next four or eight years? The answer to that question will have the most profound impact on most of our lives for the next 20 to 30 years. Think about whether you want three or four more Clarence Thomases or Elena Kagans making policy for the next generation, and your vote should be clear.•
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Maddox is managing partner of Maddox Hargett & Caruso. A former Indiana securities commissioner, Maddox represents investors in securities litigation and arbitration matters.
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