The future of the Supreme Court hangs in the balance in 2013 and beyond. One vote can change the Court’s interpretation of the Constitution on gun rights, the death penalty, the public display of the Ten Commandments, private property rights, free speech and health care. If one strict constitutionalist leaves the Court and is replaced by a judicial activist, our lives shall be very different.
The Second Amendment is a great example of what the future may portend for the natural right of all citizens to “keep and bear Arms.” The Supreme Court ruled in D.C. v. Heller, 554 U.S. 570 (2008) that the Second Amendment protects an individual right. The Court held in McDonald v. Chicago, 561 US 3025 (2010), that the Second Amendment applies to the states as well as the federal government. These two cases were both decided by 5-4 votes and the Court is one justice away from obliterating the natural God given right of self protection.
Another issue of importance to conservatives is the future of the death penalty. While the Court upheld a Kansas death penalty statute in the case Kansas v. Marsh, 548 U.S. 163 (2006), they have limited application of the death penalty in two other cases. In Roper v. Simmons, 543 U.S. 551 (2005) the Court held that the death penalty can’t ever be used on an offender who has not yet reached the age of eighteen. In Kennedy v. Louisiana, 554 U.S. 407 (2007), the Court held that the Eighth Amendment prohibits the execution of a person convicted of raping a child. These three cases were all 5-4 votes.
Clearly, an activist Court would strike down all death penalty laws if another left leaning justice were to replace a conservative on the High Court. For those who believe that the death penalty is not forbidden for child rapists and juvenile murderers under the Eighth Amendment to the Constitution, the next few years will be very important. The Eighth Amendment [g1] states “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Supreme Court justices have very different views on the interpretation of the words “cruel and unusual punishment.”
Another area that may be impacted by the addition of more activism justices on the Court is the public display of the Ten Commandments. In the case McCreary v. ACLU, 545 U.S. 844 (2005), the Court held that the public display of the Ten Commandments at a county courthouse violated the Establishment Clause because it was not integrated with a secular or historical message. In that case Justice Sandra Day O’Connor joined with liberals to ban the display of the Ten Commandments on government property. Yet in another case, Van Orden v. Perry, 545 U.S. 677 (2005), the Court held that a different display of the Ten Commandments was constitutional because it was sufficiently tied to a secular, historical message. In that case, Justice Stephen Breyer joined conservatives to uphold the display. Clearly, religious freedom could be in jeopardy with the addition of a justice who believes that religious displays such as the Ten Commandments should be banned from public display.
Those who care dearly about private property rights should also be concerned about changes in the Court. The Court held 5-4 in Kelo v. New London, 545 U.S. 469 (2005), that a city may take private property for a public purpose and transfer that property to a private corporation. The Fifth Amendment [g2] states “nor shall private property be taken for public use, without just compensation.” If a liberal justice were replaced by a constitutionalist justice, local governments may be forbidden from forcibly taking property from private individuals and transferring it to private individuals or entities for their use.
An important First Amendment case, Citizens United v. FEC, 558 U.S. 310 (2010), held that corporations, including non-profit groups, are protected by the Constitution in promoting or opposing issues and candidates. The left would love to overturn that case, because they want to restrict the rights of corporations to participate in elections. This is yet another case decided by a 5-4 vote.
Heath care reform and an expansive interpretation of the Commerce Clause is another very important area of concern. In the case NFIB v Sebelius (ObamaCare), four liberals were joined by Chief Justice John Roberts to uphold an expansive interpretation of the power of the federal government to force individuals to purchase health care or pay a penalty under the taxing power of the federal government. This case upheld ObamaCare as a proper taxing power on a 5-4 vote, yet four of the liberals wanted to uphold the law as a proper exercise of Congress’s power to regulate commerce among the states.
The future composition of the Supreme Court has not been fully debated during this important electoral season. These policy issues are very important to Americans who treasure constitutional conservatism and freedom, yet many do not realize the impact the Court has on the everyday lives of Americans. Every vote matters in the Supreme Court, and one more liberal judicial activist would change America dramatically.