What if one of the retiring justices were replaced with a radical?

This is an incredibly important question that must be asked as the possibility of a Romney-Ryan executive branch looms. Over the past two hundred years, the average Supreme Court justice’s tenure has increased from 8 years to just under 25 years. Two of the current justices were appointed by President Reagan. Today, half of the court is made up of liberals and half is of conservatives, and each side has two justices in their 70s who are nearing retirement. Given Romney’s promise to only appoint “restrained” justices – a fancy way of saying “justices whose interests are aligned with wealthy and corporate ones” – the historical lineage of decisions based around a swing vote become all the more prudent in understanding the importance of having a neutral team in our country’s highest court. 

SCOTUS v. FDR

In the 1930s, the SCOTUS was divided along party lines much as it is today. There were four conservatives and three liberals, with two centrist justices who technically controlled the swing vote but generally sided with the conservatives. 

This conservative dynamic led to many of President Franklin Roosevelt’s New Deal programs being overturned, the most notable of which was the National Industrial Recovery Act of 1933. This legislation was enacted to protect collective bargaining rights, authorize codes of fair competition, guarantee the rights of trade unions, permit the regulation of working standards, and regulate the price of certain petroleum products, but was put under fierce criticism for its endorsement of monopolies in order to drive up prices to combat the deflation problem. In a 5-4 vote, borne out of a switch from one swing justice’s voting history, the SCOTUS overturned the NIRA. 

The History of the 5-4 Decision

There is a lot to be said about the 5-4 vote. Since 1953, there have 1,099 Supreme Court decisions that were passed with a single justice deciding the outcome. The most in a given year was 42, and that was 1986, when President Reagan was in office. The reality of such a close call is that one single justice – the swing vote – has a tremendous impact not only on the decision, but also on history and future cases that will cite the decision as precedence. What would have happened if just one person switched sides and voted against Citizens United v FEC? How would this election be different if corporations were not allowed to inject massive amounts of money into the dirty campaigns we’re seeing today? 

To paint a clearer picture, let’s take the very recent 5-4 decision of the constitutionality of the Affordable Care Act. The swing vote belonged to the devoutly Catholic Chief Justice John Roberts, who, surprisingly, explained his strong philosophy of judicial restraint during his confirmation proceedings. That outcome was surprising because Roberts was long considered the conservative ally at the Supreme Court. His last-minute siding with liberal justices virtually ruined his reputation with his staunch conservative colleagues. (Conservatives were also upset that Justice Scalia, appointed by President Reagan, defended Chief Justice Roberts’ decision to uphold the constitutionality of the individual mandate, because most of them figured that Republican-appointed justices would side against Obama no matter what).

Since each justice is appointed for life, a swing vote can have a profound impact on history. The next time a new justice would be able to challenge the ruling and change the outcome of a second opinion wouldn’t be until one of the existing justices retire. With the average tenure sitting at around a quarter of a century, we really need to start worrying about what would happen if a Romney-appointed justice made her or his way into the SCOTUS, and what sort of 5-4 rulings we would have to look forward to. After all, not everyone shares Justice Scalia’s mantra: ““I sleep very well at night knowing that I’m doing what I’m supposed to do, which is to apply the Constitution. I do not always like the result – very often I think the result is terrible – but that’s not my job. I’m not king and I haven’t been charged with making the Constitution come out right all the time.”