It’s the big elephant in the electoral room: the Supreme Court.
As contentious and downright nasty as this general election cycle has turned, neither incumbent President Barack Obama, nor the Republican nominee, former Gov. Mitt Romney, have touched it. Despite splashy headlines that the high court was headed into a new session this past week, the political press corps appeared to take a pass and shrug on it. The masses hardly noticed.
The candidates, for obvious reasons, are reluctant to bring it up. With the American psyche overwhelmed by an endless news cycle of gaffes, blunders and embarrassing video clips, Supreme Court issues rank at the bottom of the messaging list. Voters are still concerned about the country’s economic trajectory more so than what nine lifetime appointees in black robes are grumbling about yards away from Capitol Hill. As a result, the two main candidates have obliged with little mention of how they would pick a Supreme Court justice.
“I suspect it’s because every candidate claims that they want the same thing in a justice: someone who will interpret and not make law,” guesses Anderson Francois, a professor of law and supervising attorney at Howard University’s Civil Rights Clinic. The clinic has already been involved in filing Supreme Court briefs on historic civil rights and voting rights cases up for deliberation this session.
Picking a Supreme Court justice ranks among the most consequential decisions a president can make. Yet, in these very polarized and uncertain political times, Supreme Court picks are fast becoming the ideological battle of the ages. With ongoing chatter and rumors swirling about the deteriorating health of Justice Ruth Bader Ginsburg and what might happen to the other three justices over age 74, inquiring minds want to know: who would a second-term President Obama or a first-term President Romney select as a replacement?
“Only the base of each party tends to focus on the issue of the court, and their votes aren’t likely to be swayed,” observes Amy Howe, editor of the authoritative court watching SCOTUSblog and a partner at D.C.-based Goldstein & Russell, P.C. who has argued before the Court. “The Court this year is tough to pigeonhole. During the 2010 elections, the president did try to make the court an issue after Citizens United, but to the extent that he wants to rely on the Affordable Care Act he can’t really run against the court. Same for Mitt Romney in reverse.”
Neither candidate has spoken to it directly, with sources pointing to a palpable nervousness about how their natural bases and their opponent’s bases would react. Supreme Court nomination fights typically energize the respective ideological extremes on both the left and right. However, there are numerous clues in the public consciousness about how the candidates would deliberate, from Obama already picking two justices (Elena Kagan and Sonia Sotomayor) to Romney highlighting the issue of a strengthened Constitution as a key platform on both his website and during the debate.
“The role of government — look behind us: The Constitution and the Declaration of Independence,” said Romney during the first debate with President Obama at the University of Denver while pointing to a large diorama of the historic documents behind the stage. “The role of government is to promote and protect the principles of those documents.”
Some observers took that as the Republican’s dog whistle to hard-right conservatives still licking their wounds from the high court’s ruling on the Affordable Care Act earlier this summer. In that case, Chief Justice John Roberts, once a reliable ideologue on the right’s favorite issues, seemed to step out of political character by largely keeping the controversial “ObamaCare” law intact.
But, the stakes are higher than that for either side of the ideological fence. There is a growing sense that at least two slots might open up due to retirement, illness or other personal reasons. Should he be re-elected, Obama is expected to pick a justice conforming to his center-left philosophy, thereby beginning the process of dramatically shifting the court from the right. That scenario scares conservatives, who hope Romney will arrive to solidify the Court’s conservative majority for decades to come.
And, at the end of the day, it’s the Supreme Court that gets the last word on all the important issues.
This session already promises a number of “blockbuster” cases, as Howe calls them, potentially earth-shattering docket shifters that could determine the fate of everything from voting rights to DNA sampling to gay rights and affirmative action. Many observers, particularly civil rights advocates, are biting their nails at the thought of an unapologetic conservative court potentially destroying affirmative action for good through one swift ruling on Fisher v. University of Texas at Austin — in which that school’s minority admissions program is being challenged. Others, particularly Black and Latino politicos, are worried about the implications of fresh challenges threatening the Voting Rights Act, while gay rights advocates wonder if the Court will uphold the Defense of Marriage Act or strike down California’s Proposition 8. There is also the lesser known, but equally impactful Kiobel v. Royal Dutch Petroleum Company case, which examines the liability of corporations torturing outside the United States.
Former Colorado Senate president and Johns Hopkins senior fellow Peter Groff cautions that some cases might stand out more than others at the closing days of the election. While he believes it’s “unlikely” they will impact the election, “the timing of the arguments in the affirmative action case is interesting.”
“It could prompt a cross country debate on the issue between the president and Romney late in the campaign,” adds Groff.
A large part of the problem, many experts agree, is that the Court is too partisan. “The courts are supposed to be unbiased and nonpartisan,” argues Andrew Blotky, Director of Legal Progress at the Center for American Progress. “But under our Constitution, the President appoints Supreme Court justices, which means that elections have real consequences. And now we have a Court with majority Republican-appointed justices.”
“People need to understand elections have consequences and in this day of hyper-partisanship courts are not immune,” says Groff.