The Biggest Thing at Stake in the 2016 Election

By David S. Cohen, Rolling Stone

13 October 15

The next president will hold tremendous power over the Supreme Court's make-up, and therefore the rights of millions of Americans

hen the Supreme Court's last term ended in June, liberals were celebrating, and conservatives were up in arms: Same-sex marriage had become the law of the land, Obamacare had been saved (yet again), housing discrimination claims could continue, Texas didn't have to offer a Confederate flag license plate, Arizona could have a rational non-partisan re-districting process, Abercrombie & Fitch couldn't refuse to hire a woman in a hijab, pregnant workers could bring claims against employers for failing to accommodate their pregnancies and Muslim inmates could grow beards while in prison.

For a historically conservative Supreme Court, this was a stunning turn of events. To be sure, the Court hadn't gone full-tilt liberal – it still upheld lethal injection and struck down environmental regulations attempting to protect against pollution. But in the most high-profile decisions, there was a decidedly leftward tilt for the Court.

Expect all that to come to a screeching halt this term, which starts this week; the coming months are likely to bring some pretty regressive decisions that are more in line with what we've come to expect from the Republican-controlled Roberts Court.

If there's any upside to this likely flood of conservative decisions, it's that it might be the kick in the pants voters need to turn out for the 2016 presidential election. Last term's social justice wins on the Court may have made people forget the significance of a Supreme Court justice's political affiliation, as well as that of the president appointing a particular justice. After all, if Anthony Kennedy, a Republican appointed by President Reagan, and John Roberts, a Republican appointed by President Bush II, could join various liberal decisions, the thinking goes, then maybe the political affiliation of Supreme Court justices doesn't matter – right? Not so much.

Currently, Republicans have a 5-4 majority on the Supreme Court. The five Republicans don't always vote together, as last term showed us, but they often do – together, they've built one of the most conservative judicial records in the Court's history.

Right now, four Supreme Court justices are at least 77 years old: Stephen Breyer (77) and Ruth Bader Ginsburg (82), who are both Democrats, and Anthony Kennedy (79) and Antonin Scalia (79), who are both Republicans. Without even considering these justices' individual medical histories, at those ages, it's hard to imagine all four of them remaining on the Court for another nine years. Which means that the next president, especially if she or he serves two terms, will almost certainly appoint at least one, and maybe even four, new justices to the Court.

If the next president is a Democrat – Hillary Clinton, or Bernie Sanders or (who knows!) Joe Biden – and she or he gets to replace Kennedy and Scalia, the replacements could radically shift the balance of power, especially if the president's appointments are particularly young. We would have a liberal block on the Court that we haven't seen in generations: a Supreme Court that protects minorities, expands abortion rights, guarantees privacy, is concerned about the environment, opens access to courts for the poor, ensures workers are treated fairly and more. In other words, a Democratic president will likely have the opportunity to shift the Court into being something that most of us under age 50 have only read about in history books.

But if the next president is a Republican – Marco Rubio, say, or (please no) Donald Trump – and that person has the opportunity to replace Breyer and Ginsburg, the Court's current Republican majority will become an almost unstoppable 7-2 juggernaut. If that Republican president also gets to replace Scalia and Kennedy, those justices will be replaced with younger, possibly more conservative versions of themselves – ensuring a decades-long continuation, or even expansion, of one of the most conservative Supreme Courts in history. The occasional liberal victory, like the ones we've seen recently, would become an endangered species, and possibly even extinct.

A rights-expanding, worker-friendly, environmentally minded, fair-access-concerned Supreme Court for the first time in generations? Or an even more extreme version of the uber-conservative Roberts Court? After the Supreme Court was awash in rainbows earlier this year, it may be easy to forget, but these are the unbelievably high stakes of next November's election.