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OK Go's Damian Kulash: Supreme Court Balance Is Election's Critical Issue

'Top tier' reason to vote for Obama, frontman argues persuasively

November 2, 2012 1:25 PM ET
Damian Kulash of OK Go
Damian Kulash of OK Go
Cindy Ord/Getty Images

Given the state of our economy, nothing is more important than creating jobs. If we choose the right man to be our next president, our economy will add between 9 million and 12 million jobs over the next four years. (Cue dramatic campaign music.) So choose wisely.

Now, shut off the dramatic music and notice the related fact: If we choose the wrong man, our economy will add between 9 million and 12 million jobs over the next four years, too.

This campaign has been all about the economy, as everyone knew it would be, but it's all political bluster.  The most important result of this election isn't who gets to propose budgets and tax policy. It's who gets to pick the lifelong terms of the people who shape America even more than the President: Supreme Court justices.

Don't get me wrong: I care about the candidates' economic plans, and their plans in general. I'll vote for Obama because his economic policies prioritize the middle class, whereas Romney is hell-bent on tax breaks for the ultra-wealthy. I'll vote for Obama because he's made more health care available to more people, and Romney wants to reverse that. I'll vote for Obama because his foreign policy has been cautious and steady, whereas Romney has been bellicose and full of threats (at least until he went unexpectedly pacifist in last week's debate). I'll vote for Obama because he supports gay marriage, and Romney doesn't. I'll vote for Obama because he supports abortion rights, and we can't really tell what Romney himself thinks, though factions of his party believe that when a woman is impregnated during rape, "that's God's will." I'll vote for Obama because he recognizes how profound and urgent our environmental problems are, while Mitt Romney jokes about them: "We don't know what's causing climate change on this planet. And the idea of spending trillions and trillions of dollars to try to reduce CO2 emissions is not the right course for us."

On a policy-by-policy basis, Obama is the right choice. But a president can only propose laws that inch the country in one direction or another for four years, while his choice of Supreme Court justices will have the final say on those laws, and all laws, for the rest of their lives. So let's just focus on that one top-tier reason why I'll vote for the right guy.

We're encouraged to think of the court system as impartial and fair, a safety valve against the crazy crap that the politicians we elect are always trying to pull. Unfortunately, it's not working that way right now. The Supreme Court, and the courts just below, are taking a much bigger role then ever before in your life. They've already been the deciding voice in one presidential election in our lifetimes; the votes that counted for Bush vs. Gore weren't the disputed thousands cast in Florida but the nine cast in the Supreme Court chambers. And with the recent 5-4 vote in Citizens United, which grants corporations the same First Amendment rights as people, meaning they can dump as much money as they please into our political system, the court is already having a huge effect on this election as well, along with all those to come.

You probably aren't kept up at night worrying about campaign finance, but I guarantee that the stuff you are passionate about ­ – the environment, Internet regulation, gay marriage, abortion, whether the government can spy on everything you ever do or say on a computer or into a phone – ­ will eventually be decided by the nine people on the Supreme Court, who you didn't vote for, and can't vote out. Who are they?

Right now we have the most conservative Supreme Court since the 1930's; some argue it's the most conservative in history. It's also the most ideologically split. There are four ultra-conservatives – Justices Roberts, Scalia, Alito and Thomas – and four centrists, who are called "liberals" by comparison, though next to the general popuation or their predecessors on the bench, they're mostly right up the middle. These are Justices Kagan, Sotomayor, Ginsburg and Breyer. Then, like any basketball team or Seventies sex party, the Court also has a swingman, Justice Anthony Kennedy. He mostly hangs with the ultracons on the right, but on occasion he crosses over to join the liberals in the center.

Because this court has decided its cases by more 5-4 votes than any other, it's not usually nine people deciding whether you have the right to marry your partner or have an abortion. For these extremely important and easily politicized questions, it's only one vote that really matters. Unless Swingman Kennedy finds it in his politics to lean toward the middle, these all go to the conservatives. And as the entire Supreme Court has shifted to the right over the last century, with the most conservative justices sitting much farther from the center than the liberals, the swing vote in the middle has become the most conservative middle vote in history, too.

This is an aging court – when eight of the nine justices were born, there were only 49 states. The oldest justice, Ruth Bader Ginsburg, is 79; sadly, she has pancreatic cancer. The next two, ­ Scalia and Kennedy, ­ are 76. Steven Breyer is 74. Whoever wins the election next week will almost certainly get to pick between one and three new Supreme Court justices. And because justices are serving longer terms – since the Seventies the average has been 24 years – we'll have to live with those choices for a generation. So this is an old, ideologically split, decidedly conservative court. Did I mention it's also quite political? The court can only rule on the cases on its docket, but it has a huge influence on what cases (and which specific issues), land in the pile on its doorstep.

Justices do this by direct and indirect invitation to lawyers and litigants, in effect saying, "Now is a good time to make your case a winner," because we've got the right five people to drive this through the system. That's happening – Alito and Roberts are particularly known for it – and they're attracting cases we all care about. Soon the Supreme Court will rule on, and likely overturn, the Voters Rights Act ­ – you know, the one that stopped southern states from withholding the vote from anybody who wasn't white and rich. Also up soon, the Defense of Marriage Act, which ought to be called the Offense by Homophobes Act. And of course, they can't wait to get their hands on Roe v. Wade. Controlling women's reproductive systems is perhaps the highest priority on their agenda. The court will rule on these and many other vital issues over the next few years, and once they have, they'll be settled.

We can't fire the justices, and we can't appeal their decisions. But we can choose the person who picks them in the first place. And that's one of the top reasons I'm voting for Barack Obama. If Obama gets elected, he'll nominate moderates – not only because he is one, but because the Senate, which has to approve his nominations, won't allow anyone further left than dead center onto the bench. Personally, I'd love three more Ruth Bader Ginsbergs, but hey, center will do. If Romney wins, he'll try to do what he says on his website: "nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas and Alito." Those are the four most right-wing and politicized judges to have ever served the court, and even one more nomination in that mold would lock in their ultra-conservative majority for years. One reason I'm voting for Obama is because his policies are better, but that's my secondary reason. When we decide who gets to be president, we're also deciding what the Supreme Court looks like for a generation to come.

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