Today is the first Monday in October, and that means the nine justices of the U.S. Supreme Court will gather in Washington, as they do on this date every year, to begin their new term.
It so happens that the first of three presidential debates in the current election campaign also will take place this week, and ideally the importance the American voters should accord the selection of these justices would be addressed in these debates. Provided he gets to fill one or more vacancies on the Supreme Court, the winning candidate’s beliefs will inevitably be reflected in the court’s decisions.
This is particularly relevant this year because Justices Antonin Scalia and Anthony Kennedy are 76, and Ruth Bader Ginsberg is 79. Presumably they’ve given at least some thought to their eventual retirement, and of course when they do they will be replaced by justices nominated by the president and confirmed by the U.S. Senate.
The sad fact is, however, that survey after survey strongly suggests that many Americans cannot name the nine justices of the Supreme Court or even accurately describe the separation of powers that is at the heart of our nation’s democracy, which functions best with an informed electorate.
As it is now constituted, the Supreme Court is regarded as essentially having five conservative and four liberal justices, although Chief Justice John Roberts surprised nearly everyone — and infuriated many conservatives — by joining the liberals in upholding the health care law we commonly associate with President Obama and the Democrats.
His vote on that highly contentious issue has raised questions about the court’s immediate future: Did the fact that Roberts sided with the four liberals on that question signal a truly significant shift, or was that just a one-time departure from the present court’s normal alignment? Thus the scrutiny of the new session will be fraught with unusual anxiety for conservatives and progressives.
The former will hope that the chief justice will return to the fold, so to speak, while the latter will cling to hopes that Roberts has somehow ideologically separated himself from his customary bloc, or at least that he has joined Justice Kennedy as one conservative who is rather less doctrinaire, judicially, than all the others.
The consistently conservative bloc consists of Justices Scalia, Clarence Thomas and Samuel Alito, with Roberts and Kennedy often joining them. The consistently more liberal justices are Justices Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. If Roberts were to share their opinions on some issues, this Supreme Court could have a far different impact than might otherwise be predicted.
Important decisions loom for this court on issues such as affirmative action in higher education admissions, same-sex marriage and a challenge to core provisions of the Voting Rights Act of 1965. The new term, beginning today, could also add clarity to the health care ruling that separated Roberts from his customary companions on the right.
These issues should interest all of us, and yet there’s reason to fear that too many Americans are simply uninterested and therefore uninformed. In a democracy, that’s a serious problem.
And how should that problem be solved? It won’t be easy, but we must make sure American citizens fully understand their democracy. The beginning of the Supreme Court’s new term provides a splendid opportunity to draw increased attention to how our government functions and to why informed voters are so critical to keeping the United States on the paths to freedom laid down so carefully in the late 18th century.
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