The composition of the Supreme Court, in my view, is the major issue of the 2016 presidential election. It’s possible that the next president will nominate between 2 and 4 justices. The conservative-leaning court we have now could, by 2020, lean liberal or be strongly conservative, based on who the next president is.
This, of course, assumes that a Republican Senate would confirm any Supreme Court nominees from a Democratic president who were to the left of Samuel Alito. I harbor doubts on that point, to be perfectly frank. I can sadly envision a scenario where the Supreme Court stands at 6 justices by the end of the next president’s first term due to a refusal by a Republican Senate to confirm replacements.
Chuck Todd, in one of his rare acts of journalism, pinned Marco Rubio down on his plans for abolishing same-sex marriage. Rather than a constitutional amendment, Rubio wants to use the Supreme Court. He believes the Supreme Court interpreted the Constitution wrongly in Obergefell v. Hodges, and he intends to appoint justices who would interpret the Constitution as he believes it was “originally constructed.” In other words, he would nominate Originalists in the Antonin Scalia or Clarence Thomas mold.
I have two thoughts about this.
First, we have clarity on Rubio’s vision of what the Supreme Court should be. As I said, I think the Supreme Court is the issue of 2016, and it’s important that we know how the candidates intend to fill vacancies and what their vision for the nation’s legal framework is.
Second, if this is really Rubio’s plan, he displays little understanding of how the Supreme Court works. For Rubio’s hypothetical Court to say that Obergefell was wrongly decided, they have to have a case first. It’s not like the Supreme Court sits around, looks at previous cases, and issues a press release that says, “Oops, we decided this one wrongly a few years ago, and we’ve changed our mind.” I don’t see who would have standing to sue to overturn same-sex marriage because I don’t see who’s suffering from irreparable legal harm because of it. Even Kim Davis’ emergency pleas to the Supreme Court were rejected. (I should note, however, that smarter minds than mine, like Michael Tomasky‘s, do see ways the Supreme Court could revisit Obergefell.) Rubio may well want a Supreme Court that says Obergefell was the wrong decision; I question whether or not such a Court would ever be in a position to say such a thing.
The conclusion I’m forced to make is that Rubio is cynically pandering to elements of the Republican base. He sidesteps the Constitutional amendment suggested by Chuck Todd, probably because he realizes that no such Constitutional amendment will ever happen; there aren’t super-majorities in both houses of Congress to pass an amendment, nor are there 38 states that would ratify it. He must also realize that the Supreme Court won’t revisit the issue in the way he says he wants them to revisit the issue because the issue will never come before them again in that way. He’s drumming up the support that he badly needs by playing his base for suckers, but in so doing he’s all but ensuring that he’s unelectable to vast swathes of the general electorate that have already moved on.
I agree with conservative commentators, like S.E. Cupp, who argued this summer, after Obergefell, that the Republicans need to let the marriage issue go. They will only end up hurting themselves by continuing to marinate in their own bile.