This election is significant because the Supreme Court is divided, 5-to-4 on most issues, a split that’s often ideological with conservatives in the majority. Over the next four years three justices, Antonin Scalia, Anthony M. Kennedy and Ruth Bader Ginsburg, who are all in their late 70s, could retire (especially if a president is elected who shares their philosophy). President Obama has already appointed two justices, Sonia Sotomayor in 2009 and Elena Kagan in 2010. But those two appointments did not shift the balance on the court, they essentially replaced liberal justices.
But during the next four years that could change. If Mitt Romney is elected, he could appoint a conservative, building on that conservative majority. Or, conversely, if Obama is reelected, his appointments could shift the court to a liberal majority.
If the Supreme Court has not been an issue in the broader campaign, it has been on a few people’s minds in Indian country. Sherman Alexie, the Spokane and Couer d’Alene writer, Tweeted a link to a court story yesterday saying: “The most important reason to vote for Obama.”
Of course, in a more perfect union, Obama would finally appoint an American Indian to the high court. The same Supreme Court that has defined the definition of what it means to be a tribal citizen in the 21st century. The same court that has limited the power of tribal governments to act as sovereigns. The same court that created a crisis, in Carcieri, that tossed out decades of Indian law.