High court’s po­lit­i­cal bal­ance hinges on pres­i­den­tial elec­tion

Baltimore Sun - - FROM PAGE ONE - David.sav­age@la­times.com

That left Richard Nixon to nom­i­nate a con­ser­va­tive in­stead, the start of a quar­ter-cen­tury of Repub­li­can ap­point­ments that moved the court to the right.

Now, with the GOP-led Se­nate’s re­fusal to con­sider Pres­i­dent Barack Obama’s can­di­date, Mer­rick Gar­land, to fill the va­cancy cre­ated by the death of An­tonin Scalia, the high court faces — if Hil­lary Clin­ton wins in Novem­ber — the prospect of a sim­i­larly his­toric shift, al­beit in the op­po­site di­rec­tion.

If GOP nom­i­nee Don­ald Trump wins, con­ser­va­tives are likely to re­store their 5-4 ma­jor­ity, based on the names of prospec­tive nom­i­nees his cam­paign re­leased.

But a Clin­ton vic­tory would likely give the court a ma­jor­ity of Demo­cratic ap­pointees for the first time since 1969. The Se­nate could de­cide to ap­prove Gar­land in the lame-duck ses­sion at the end of the year, or leave the choice to Clin­ton. Ei­ther way, it would rep­re­sent the most lib­eral high court since the early 1970s. If that hap­pens, what could change? For starters, lib­er­als could score some short-term vic­to­ries early next year on sev­eral hot-but­ton is­sues in­volv­ing Obama’s ex­ec­u­tive ac­tions and reg­u­la­tions — on im­mi­gra­tion, cli­mate change, con­tra­cep­tives and rights for trans­gen­der stu- dents.

This past spring, the jus­tices put off sev­eral de­ci­sions, given the cur­rent 4-4 split among Repub­li­can and Demo­cratic ap­pointees. For ex­am­ple, they did not de­cide whether em­ploy­ers at re­li­gious schools and colleges can be re­quired to pro­vide free con­tra­cep­tives for their fe­male em­ploy­ees un­der Obama’s health care law. That is­sue re­mains un­re­solved, but a fifth Demo­cratic ap­pointee could form a ma­jor­ity to up­hold the so-called con­tra­cep­tive man­date.

In June, the court split, 4-4, on Obama’s plan to de­fer de­por­ta­tion and of­fer work per­mits to more than 4 mil­lion im­mi­grants liv­ing in the U.S. il­le­gally.

The tie vote kept in place a Texas judge’s or­der that has halted Obama’s pol­icy. But the case is still pend­ing, and with a fifth Demo­cratic ap­pointee, the court would prob­a­bly clear the way for the pol­icy to be put into ef­fect.

The grow­ing dis­pute over trans­gen­der stu­dents us­ing bath­rooms that match their gen­der iden­tity could be taken up early next year. A Vir­ginia school district has filed an ap­peal chal­leng­ing an Ed­u­ca­tion De­part­ment de­cree.

A fi­nal ma­jor de­ci­sion could come in the area of vot­ing rights. In re­cent years, Repub­li­can-led states have adopted new elec­tion laws that limit early vot­ing and re­quire vot­ers to dis­play spe­cific state- is­sued photo IDs at the polls. These mea­sures have been chal­lenged by civil rights lawyers and the Jus­tice De­part­ment on the grounds they are de­signed to re­strict vot­ing by African-Amer­i­cans and Lati­nos.

“There is no doubt that a lib­eral court would be more sen­si­tive to claims of voter sup­pres­sion like we’ve seen in North Carolina and Texas and more vig­i­lant against racial ger­ry­man­der­ing,” said Steven Shapiro, the ACLU’s na­tional le­gal direc­tor.

Many con­ser­va­tives say that the prospect of a lib­eral Demo­crat fill­ing Scalia’s seat is driv­ing sup­port for Trump.

“It could mean rolling back ... the 2nd Amend­ment and cut­ting back on re­li­gious lib­erty,” said El­iz­a­beth Slat­tery, a le­gal an­a­lyst at the Her­itage Foun­da­tion, a con­ser­va­tive think tank. “Cit­i­zens United is also on the hit list for the left,” she said, re­fer­ring to the 2010 de­ci­sion that knocked down lim­its on in­de­pen­dent cam­paign spend­ing by cor­po­ra­tions and unions.

“My guess is the shift would be fairly slow and in­cre­men­tal,” said Univer­sity of Chicago law pro­fes­sor Ge­of­frey Stone. “The so-called lib­er­als on the court are by na­ture and ex­pe­ri­ence fairly cau­tious and mod­er­ate.”

MARK WIL­SON/GETTY IMAGES

Judge Mer­rick B. Gar­land, right, and Pres­i­dent Barack Obama de­part af­ter Gar­land was nom­i­nated to the Supreme Court. His nom­i­na­tion has been in limbo, pend­ing the pres­i­den­tial elec­tion.

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