On Friday’s Hardball, Chris Matthews spoke to The Huffington Post’s Sam Stein and The New Yorker's Jeffrey Toobin, author of The Oath, about the Supreme Court—a particularly underreported topic that weighs in the balance of the November election.
Matthews explained there’s much more at stake than just the presidency, simply because four of the current justices are "getting up there" in years: liberals Breyer, 74, and Ginsburg, 79; swing voter Kennedy, 76; and conservative Scalia, 76. The next president will likely be appointing Supreme Court justices who will have a strong hand in shaping federal policy for years to come.
Matthews asked Stein to name some of the issues at stake, and it wasn’t a short list: campaign spending regulations, separation of church and state, whether universities can use race in admissions, and Roe v. Wade. Stein said civil rights issues, especially gay rights, will probably be front and center:
“One of the cases that could be considered is the Voting Rights Act, that could be overturned. Obviously, affirmative action is going to be on the docket, that’s a very complicated issue. But it works both ways – there’s a very high chance that this court will hear an appeal to DOMA. It could be the first court that establishes at least some progressivity with respect to gay rights and that could make it a sort of a historic court in some sense, even if the politics suggest otherwise. So you know, it works both ways. And it’s going to be curious to see not only which cases they pick up but in what manner and how they do it and And how the arguments play out. DOMA could come up, but so could Prop. 8 which is a different section of the gay rights debate, so I’m curious to see how it plays out.”
Appointing a justice is one of the most consequential decisions a president can make; Matthews pointed out they even had the last word on the 2000 election. He asked Toobin how much power the next president would have to swing it to the left or right; to take a seat occupied by a conservative and give it to a liberal, or vice versa. Toobin said it’s tricky business, with huge implications:
“The fact is most Supreme Court nominations get through…but we have not seen a liberal replace a conservative in a very long time, maybe 1993 when Byron White was replaced by Ruth Ginsburg. But if, for example, the conservative – one of the conservative justices leaves in a second Obama term, that will be the World War III of all time because the conservative movement in this country has embraced their version of the Constitution as a fundamental aspect of what they believe in. More than Democrats have, frankly. Republicans talk about the Constitution more than the Democrats do these days, and if the balance could go from 5 to 4 Republican to 5 to 4 Democrat, the implications would be earth shaking.”