President Obama

By Paul M. Smith, Partner, Jenner & Block. Mr. Smith successfully challenged the constitutionality of sodomy laws in the landmark Supreme Court opinion, Lawrence v. Texas, and is a former chair of the ACS Board.

It takes no great insight to say that President Obama’s announcement of support for equal marriage rights for same-sex couples reflected, in part, mounting political pressure on the president. As Adam Nagourney said in Thursday’s New York Times, the president “was at risk of seeming politically timid and calculating, standing at the sidelines while a large number of Americans – including members of  both parties – embraced gay marriage.”  In fact, it became clear the campaign had misjudged the politics of this issue. Experience was showing it was close to impossible for Mr. Obama to talk with core members of his base without facing the same awkward question over and over – when are you going to get done “evolving” on the issue of equal marriage rights?  That said, it does seem over the top for the Log Cabin Republicans to call the announcement “offensive and callous” on the same day when so many others, gay and straight, were inspired by the fact that a sitting president had moved so far toward advocating complete equality for LGBT citizens.

The more interesting question is why the original decision to avoid this issue until after the election proved to be so wrong. After all, candidates avoid controversial issues all the time when voters and the press will allow it. The answer is in part that the issue of equal marriage rights is constantly being brought up this year as a result of referenda that will occur in four states in November (not to mention the vote just held in North Carolina) as well as the Prop 8 and DOMA lawsuits. 

by Jeremy Leaming

The nation’s growing income inequality, among other issues concerning the economy, should play a significant role in the presidential election, but writing for The Nation, Ari Berman delves into why the Supreme Court should also be “a major issue in November.”

The Supreme Court is simply not balanced. The court has been shoved far to the right. Berman cites Nate Silver’s reporting for The New York Times on a recent study that “finds that the current court is the most conservative since at least the 1930s.”

The Martin-Quinn Scores, which Silver rendered in two charts, also “imply that, on the basis of its median justice, the current court is farther from the ideological center than any recent court. For instance, it is farther from the center than the liberal courts of the late 1960s that were under Chief Justice Earl Warren.”

And beyond deciding whether health care reform will stand or fall, the Roberts Court is likely to consider a slew of major issues in the “not-so-distant future,” Berman writes. Some of these concerns include affirmative action policy, voting rights, marriage equality and reproductive rights. (As Berman notes, Republican state lawmakers have passed numerous onerous restrictions on reproductive rights over the last few years.)

The right already gets it. Leaders of the conservative movement have obsessed over the make-up the federal courts and the high court in particular, for decades. And those leaders haven’t stopped obsessing. Berman notes that NRA leader Wayne LaPierre declared, in hyperbolic fashion, at this year’s Conservative Political Action Committee, “If Obama wins re-election, he will likely appoint one – and perhaps three – more Supreme Court justices. It’ll be the end of our freedom forever.”