What to Expect from Obama's Second Term (Part Four)

More Progressive Justices on SCOTUS

Barack Obama’s re-election will likely give him the opportunity to reshape the Supreme Court. Conservative Justices Antonin Scalia and Anthony Kennedy are 77 years old and 76 years old while Progressive Justices Ruth Bader Ginsburg and Stephen Breyer are 79 years old and 74 years old. While Justice Oliver Wendell Holmes and Justice John Paul Stevens both retired at age 90, the average retirement age of a Supreme Court Justice is 78.7.

It is plausible that Justices Ginsburg and Breyer will retire during Obama’s second term in order to enable him to appoint younger Justices to join 58 year-old Sonia Sotomayor and 52 year-old Elena Kagan as a young cadre of Progressive Justices. There is a long precedent of Justices retiring during the administration of a like minded president. It is also plausible that Antonin Scalia and/or Anthony Kennedy may retire from the court given their advanced ages.

The Roberts Court has been famously divided among ideological lines. The Roberts Court has had 22% of its cases decided by a 5 to 4 margin. Retirement by either Justice Scalia or Justice Kennedy would tip the balance of the Supreme Court in the favor of the Progressive Justices. While many social conservatives will lament the fact that this would make it incredibly unlikely for it to slay their white whale – Roe v. Wade – the repercussions of a Progressive majority in the Supreme Court would have would be far more wide ranging than that.

The most “clear and present danger” of a Progressive majority in the Supreme Court would be the interpretation of the Commerce Clause. Lost in the controversial NationalFederation of Independent Business v. Sebelius – “Obamacare” – Supreme Court decision was Justice Roberts siding with the other Conservative Justices in claiming that the individual mandate of “Obamacare” lay outside of the Commerce Clause power of Congress because it involved penalizing economic inactivity rather than regulating economic activity. If another Progressive Justice was to join the Supreme Court and provide a Progressive majority, the Commerce Clause would likely be viewed as having no practical limit. There will be no facet of American life that the Supreme Court will not allow Congress to regulate under the Commerce Clause. If there is any doubt about this, then consider the exchange between Senator Tom Coburn and Elena Kagan at Kagan’s confirmation hearing. When asked by Senator Coburn whether Congress could enact a law requiring all Americans to eat three vegetables and three fruits everyday, Kagan replied that while she thought such a law would be dumb, there is a difference between striking down a law for being dumb and striking down a law as unconstitutional. In other words, the Progressive wing of the Supreme Court likely believes that it would be constitutional for Congress to regulate the eating habits of American citizens. A further broadening of the scope of the Commerce Clause would render the limits of Congressional power null and void. Congress would no longer be bound – even in theory – by its list of enumerated powers in the Constitution. This, of course, would effectively put the last nail in the coffin of the Tenth Amendment and states’ rights.