The Supreme Court’s 5-4 Decisions Can Be Reversed With Even One New Justice

The Supreme Court of the United States blocked Department of Health and Human Services regulations requiring employers, in this case corporations, to provide no-cost birth control to female employees, saying it violates the Religious Freedom Act, again because of their 5-4 view that “corporations are people.” (Photo: Nicholas Eckhart)

ALL it takes is one vote. We are not forever stuck with a Supreme Court that has ruled some of the worst decisions by 5-4 votes. One nomination, one vote, could make the dissent the majority. Here’s the kicker: The change in the court may be in a direction few have predicted. It’s not just the liberals who are old or potentially sick, but the conservatives. Illness and voluntary retirement happen unexpectedly. Who would have thought that moderate Sandra Day O’Connor would retire in 2006?

The Supreme Court Justices have more control than you think; they even play a hand in choosing their successor by deciding when to retire, and by doing so, selecting what President will choose their replacement.

It’s true that Ruth Bader Ginsburg, 82 (confirmed under Bill Clinton, 1993), is the oldest, and liberals have been pressing her to make room for an Obama appointment but she continues onward, with spunk. However, most of the others, including conservatives, are not far behind:

Antonin Scalia, 79 (Ronald Reagan, 1986)

Anthony M. Kennedy, 78 (Ronald Reagan in 1988)

Stephen Breyer, 76 (Bill Clinton, 1994)

Clarence Thomas, 66 (George H. W. Bush, 1991)

Samuel Alito, 65 (George W. Bush, 2006)

John Roberts, 60 (George W. Bush, 2005)

Sonia Sotomayor, 60 (Barack Obama, 2009)

Elena Kagan, 55 (Barack Obama, 2010)

Justices Kennedy, leaning right, and Breyer, leaning left, tend to be the two deciding swing votes in this Court. Both are in their late 70’s. A strong liberal replacement for either would make the court more progressive.

The cases that could be changed by one vote are enormous. Former Senate Leader George Mitchell told the National Press Club last year, “The Citizens United Decision will go down as one of the worst ever by any Supreme Court.” He said it helps foster a “maddening money chase” in politics, makes it “far worse than before,” and “I hope the American people will rise up against it.

Here is a list of the top six cases that could be reversed by a single vote, with a more progressive Court:

1. Citizens United v. Federal Election Commission, 2010— The Court ruled that the First Amendment gives non and for profit corporations, associations and labor unions the power to donate to political campaigns with no funding caps or restrictions. The court went even further in its controversial and disputed “corporations are people” philosophy.
2. Shelby County v. Holder, 2013—The Court struck down section 4b of the Voting Rights Act which gives the federal government power over states that have a history of voting discrimination. Despite near-unanimous congressional approval of prior voting rights amendments as specifically authorized in the Constitution for Congress, Justice Scalia voted for the court to override congress due to his belief Congress can’t be trusted: “They’re going to lose votes if they vote against the Voting Rights Act.” To Scalia, democracy is unconstitutional. On the other hand, Justice Ginsberg, among the four minority votes, accurately stated that the Congressional power “is in the constitution.” Republican House and Senate Judiciary Chairs Goodlatte (R-VA) and Grassley (R-IA) have seized on the majority-five ruling as an opportunity to stop improvements in the law while permitting forms of voter suppression.
3. Wal-Mart v. Dukes, 2011 – The Court ruled that a female Wal-Mart employee could not file a class action suit alleging gender discrimination on behalf of herself, and 1.5 million Wal-Mart employees.
4. Burwell v. Hobby Lobby, 2014 – The Court blocked Department of Health and Human Services regulations requiring employers, in this case corporations, to provide no-cost birth control to female employees, saying it violates the Religious Freedom Act, again because of their 5-4 view that “corporations are people.”
5. Amnesty v. Clapper, 2013—ACLU challenged President Bush’s 2001 wiretapping program expanded by Congress in 2008. The Court 5-4 ruled the legislation constitutional and upheld the NSA’s power, without warrant, to collect lists of international phone calls and emails. The debate continues in Congress as we write.
6. Bush v. Gore, 2000—Just five Republican-appointed justices stopped the Florida re-count, making George W. Bush the next president. Because of his policies versus Al Gore’s, critical issues that could have turned out very differently include entering the Iraq War, financial deregulation leading to the 2008 crash, and rich tax breaks expanding income inequality.

The Court will face many more high profile decisions affecting Michigan and the nation in the near future, including the Affordable Care Act, civil rights and gay rights cases, fair housing, women’s health choices, pay equity, and regulation of financial institutions and corporations. The Supreme Court consists of people with pre-existing political and ideological proclivities. Changing the Court could come from age, illness, or something all Americans have power over—the person we elect as President.