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At Fundraiser, Michelle Obama Says Supreme Court Is at Stake

David Ingram has this post, with the above title, at BLT.

She is right, to that extent, of course.  While the elder Justices all appear to be healthy enough, Father Time eventually comes for us all, and the President elected next November could have multiple appointments.  That would have important implications for criminal law.
The Steikers think there is a real chance for judicial abolition of capital punishment, overruling Gregg v. Georgia.  With multiple appointments by a very left-leaning President, that is a possibility.

My main jurisprudential goal, on the other hand, is the overruling of Lockett v. Ohio.  A very large portion of delay and expense in capital cases is litigation over "background" evidence of little relevance and whether the defense lawyer did a good enough job discovering and presenting this marginal evidence.  Why can't a state just exclude it on the ground that its marginal probative value is just not worth the delay and expense?  Cf. Federal Rule of Evidence 403.  I know I have two votes for that.  I suspect I might have two more.  We could be within an appointment or two.

But of course Mrs. Obama wanders off into nonsense. 

Obama, who practiced law as an associate at Sidley Austin in Chicago, emphasized that the appointments will likely have long-lasting and wide-ranging effects. "Let's not forget," she said, "the impact that their decisions will have on our lives for decades to come -- on our privacy and security, on whether we can speak freely, worship openly, and love whoever we choose. That is what's at stake in this election." The audience then applauded again.

"Privacy" is a broad enough term that a wide range of issues might come under it, so I suppose you can always say that.  But the danger to our security comes from the left, not the right.  Is whether we can "speak freely" in danger from contemporary conservative jurisprudence?  I can't think of any cases in many years where one could say that.  Worship openly?  Is that in any danger from more appointments like Roberts and Alito?  Of course not.  Not even arguably.  Love whoever we choose?  That has never been in danger.  Even if "love" means "have sex with," nobody can seriously think the old sodomy laws are due for a comeback.  That water is under the bridge, down the river, and out to the ocean.

Phantom dangers aside, though, the coming election is critical for the federal court appointments to be made in the next four years.

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