November 8th and the power of 5-to-4


With the U.S. election date looming, questions surrounding the direction of the U.S. Supreme Court remain unresolved. In last week’s presidential debate, both nominees were questioned on who their pick would be to fill Justice Antonin Scalia’s seat, a spot that has been vacant since February of this year through his untimely passing.

The U.S. Supreme Court’s position of being “down one” on a presidential election day is nearly unprecedented, with the exception of the re-election of Abraham Lincoln in 1864. Like Lincoln’s fateful mid-civil war re-election, November 8th will be high stakes.

Lincoln’s choice for the top court and Chief Justice in 1864 was Salmon P. Chase, an anti-slavery, African-American civil rights activist and failed presidential candidate. Chase was part of a new era, following the death of Chief Justice Roger Taney, creating the vacancy of Chief Justice. Taney is better known for his decision in Dred Scott v. Sandford, the landmark case that ruled African-Americans cannot be acknowledged as citizens if they had immigrated to the U.S. as slaves, a decision often attributed to sparking the beginning of the Civil War.

Why is this parallel in jurisprudence so relevant to the upcoming results that will be rolling in in just over two weeks’ time? Because like 1864, there are fundamental decisions to be made and directions to be taken with religious, cultural and economic standards in not only the U.S., but all of North America. Currently, the U.S. Supreme Court’s makeup consists of four liberal justices and four conservatives, with Scalia, a conservative, previously outweighing the scale towards taking a more attributive approach.

The potential for change and its relevance was underscored in the final presidential debate, with the remarkably early questioning of the make-up of the Supreme Court in the official program. Clinton confirmed that Obama-nominee Merrick Garland is fit for the spot, while Trump has opted to choose between 11, predominantly male candidates.

In the next four years, issues such as gun control, immigration, trade and religious rights will be heard and adjudicated by the U.S. Supreme Court and the results of each will ride heavily on that fateful second Tuesday of November.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.