The unfilled vacancy of Antonin Scalia’s seat combined with a Hillary Clinton victory in November could set the Court on a new course. . . . The result would be a solid 6-3 liberal majority of a kind not seen in many decades.
The implications of such a shift are massive. The Court is not a legislative body, and it can’t simply undo all of the conservative rulings of recent decades. The doctrine of stare decisis means the Court tries not to contradict its past rulings except in rare cases. But after speaking to a number of prominent legal scholars and experts, it appears there are some notable areas where a liberal Court could make a significant difference.Specifically, the Court could overturn or limit Citizens United and the free speech rights contained in it:
Clinton promises to "appoint Supreme Court justices who will protect Americans’ right to vote over the right of billionaires to buy elections," and has reportedly told her own donors that she will make prospective justices pledge to overturn Citizens United. . . . But most of the experts I spoke with expressed skepticism that the decision will be overturned outright. . . . That being said, the legal scholars I asked suggested that a more left-leaning Court could subtly undermine Citizens United by upholding distinct campaign finance regulations at the federal and state levels.
"My guess is that [a more liberal court] wouldn't overrule Citizens United in the short run, but that it would narrow the decision and uphold a range of possible regulations of money in the political process," Geoffrey Stone, a law professor at the University of Chicago and specialist in free speech cases, says. "Over time, these decisions would significantly erode Citizens United."The Court could also threaten the integrity of elections and states' ability to administer their own elections -- for example, by upholding a legislative revival of the preclearance process struck down in Shelby County v. Holder or by raising the standard of scrutiny of laws regarding voting:
For example, in Crawford v. Marion County in 2008, the Court ruled that Indiana's photo ID requirement for voters was not an undue burden, because, as Justice John Paul Stevens wrote, "the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph does not qualify as a substantial burden on most voters' right to vote." . . . But [Pam] Karlan notes that the Court wouldn’t even have to totally reverse course and start applying strict scrutiny to make progress on these issues. "One of the things I’ve been thinking about is a more liberal version of the undue burden–style standards that the Court has employed," she says. "A version of that test that really takes into account socioeconomic disparities and the like could have a major impact." . . .
That’s a particularly promising avenue for the Court since it requires minimal change in the Court’s doctrines. "It’s not necessarily the legal tests themselves that are the problem," Karlan notes. "It’s the sensibilities and the understandings and the world-awareness of the people applying the tests." That’s something that changing the membership of the Court could shift substantially, even if the new Court isn’t eager to overturn precedent.These are just a few of the ways a Supreme Court remade by liberal lawyer Hillary Clinton could threaten the rule of law and the role of the courts by enacting liberal policies by judicial fiat. Electing Donald Trump is the only way to prevent this chilling picture becoming reality.