Yesterday we received a vivid example of why perhaps the single biggest impact the next president may have is the appointment of the next one or two justices to the Supreme Court of the United States (SCOTUS) as the justices in a 5 to 4 decision upheld an order to release of up to 46,000 prisoners in the California prison system. The written decision was accompanied by dissenting opinions by the court’s four conservative justices which contain some of the most animated language seen in recent years. Justice Anthony Kennedy joined with the courts four liberal justices and wrote the opinion for the majority in upholding a lower court order. Justice Antonin Scalia characterized the lower courts actions saying “The proceedings that led to this result were a judicial travesty”.
Now let’s not let The State of California off easy is that they have practiced the dual hypocrisy of being tough on crime while not implementing the policies and resulting spending on prison construction needed to support those policies. California has a death penalty which is widely imposed by local courts and has left the state with the largest death row population in the nation with over 700, yet the state has executed only 13 since the death penalty was reintroduced in 1976. California led the nation with one of the toughest Three Strikes laws resulting in the incarceration of thousands of repeat felons, yet has lagged the nation in new prison construction. Courts for years have been citing the state for the sub standard treatment of inmates and threatening forced releases, yet the Democrat dominated state legislature failed to protect the people of the state from risk posed by a forced release.
Yet the upholding of a lower federal court order directing the release of state inmates on this level is without precedent. Associate Justice Samuel Alito wrote in a dissent joined by Chief Justice John Roberts “The majority is gambling with the safety of the people of California. Before putting public safety at risk, every reasonable precaution should be taken… I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims. I hope that I am wrong. In a few years, we will see.”
While saying he would protect the people of the state, California Governor Jerry Brown did not disagree with the logic of the decision. His administration has a plan to shift as many as 30,000 inmates to already crowded county jails. I guess that means Lindsey Lohan has little to fear about going back to jail.
For Conservatives there is much to fear in this decision and it serves to illustrate how fragile the assumed 5 to 4 conservative majority is on the high court. This extends a recent trend for the high court to insert itself into the affairs of the states in areas of clear state jurisdiction rather than deferring to state courts on those matters. Justice Anthony Kennedy, once seen as part of the 4 conservative justice block curing the Rehnquist court has increasingly joined with the four left wing justices. With major decisions on maters fundamental to the nature of government in our nation moving towards the Supreme Court, issues such as the constitutionality of the individual mandate in Obamacare, nothing is certain.
However perhaps the biggest take away of this decision is how important it is to make sure that the next president to make an appointment to the court is a Conservative Republican. Antonin Scalia, the leading conservative on the court is the second oldest justice at 75, having served more than 24 years. Guessing on when court vacancies will occur is a poor science, however it is likely the winner of the 2012 election will have at least one appointment, and that could well determine the future direction of our country on many current issues. Had John McCain won the 2008 election and made the last two appointments instead of President Obama, this decision almost certainly would not have occurred. Winning elections does matter and has profound effects for generations. This is something those of us on the right cannot