JURIST Contributing Editor William G. Ross of Cumberland Law School at Samford University says that although the US Supreme Court has not been a significant issue thusfar in the current Presidential campaign, the likelihood of Presidential appointments to the Court in the next four years, combined with all the high-profile issues the Court addresses, makes it something that voters should be thinking about.

In contrast to the 2000 presidential election campaign, when federal judicial appointments were a major issue, voters and candidates this year have largely ignored the courts. This is ironic, for the 2004 election will almost certainly have far more impact upon the federal judiciary than did the 2000 election. Contrary to widespread expectations during the 2000 campaign, no U.S. Supreme Court vacancies have arisen during the current presidential term. Since the advanced ages and uncertain health of many Justices practically ensure that vacancies will occur during the next four years, the election could profoundly affect the Court’s ideological direction for decades.

Although both candidates briefly commented on Supreme Court appointments in response to questions during the second and third presidential debates, neither has emphasized the issue on the campaign trail. Kerry, who declared during the second debate that “the Supreme Court of the United States is at stake in this race,” has only recently begun to make regular references to judicial appointments in his public addresses. Bush has largely ignored the issue, aside from his frequent criticism of the Massachusetts judges who held last summer that their state constitution required same-sex marriage. He appealed to his conservative constituents in the second debate by promising that he would not appoint “activist judges.”

Many political activists and commentators are less reticent. Various Kerry supporters, including Hillary Rodham Clinton, Jesse Jackson, and Al Sharpton, have recently made speeches warning that the coming election could profoundly influence the Court. Several liberal groups have made similar appeals. People for the American Way, for example, has issued a report entitled Courting Disaster 2004, which argues that a Bush victory would have dire consequences for civil liberties because Bush would make reactionary judicial appointments. On the other end of the political spectrum, Pat Buchanan and many other traditional conservatives are supporting Bush, despite their intense opposition to many of Bush’s policies, because they believe that Bush would make sound judicial nominations. Many newspaper endorsements of Kerry and Bush have emphasized the impact that the election may have upon the courts. These and other efforts to interject judicial politics into the campaign, however, remain the exception.

This year’s apathy about judicial issues is more consistent with historical patterns than was the high level of interest that marked the 2000 campaign. Only four times during the past century — in 1924, 1964, 1968, and, to a lesser extent, 2000 — has the federal judiciary emerged as an issue that may have influenced significant numbers of votes. Even in those elections, however, the impact of judicial issues is uncertain.

The most obvious reason why the Court is not an issue in the present presidential campaign is that this year’s election has an unusually tight focus, with national security and the economy dominating the political agenda. In contrast, the Court may have become uncommonly salient during the 2000 campaign because, during a time of peace and prosperity, there were no overriding election issues.

Judicial issues tend to have a low profile in most presidential campaigns because these contests do not encourage the serious discussion of public affairs. Since many of the most significant and divisive issues that federal courts decide are too complex and nuanced for many voters to comprehend, the major parties naturally tend to ignore such issues. As the Des Moines Register observed in lamenting that the Court was “the forgotten issue” during the 1992 presidential campaign, voters and candidates were tempted to ‘shrug off’ judicial issues “as arcane in a campaign of erupting bimbos and waving flags.” Serious discussion of judicial issues is made even more difficult by widespread ignorance about constitutional questions. Although there appears to be growing recognition of the judiciary’s political importance, most voters seem to remain uninformed about the work of federal judges. Surveys indicate that even the names of most Supreme Court Justices remain unknown to the overwhelming majority of Americans.

In discussing the Court, candidates must therefore speak about simple issues that resonate with a broad spectrum of voters. It was not surprising, for example, that Bush during the second debate indicated that he would not appoint judges who would remove the words “under God” from the Pledge of Allegiance. Similarly, one study has indicated that Barry Goldwater’s 1964 attacks on the Court for its 1962 decision banning state-sanctioned prayer in public schools struck far more chords with voters than did his criticism of the Court’s recent reapportionment decisions, which had far more political significance than school prayer but ignited less passion and were more difficult for voters to understand. Since abortion is a hot-button issue, many Republicans and Democrats during recent presidential campaigns have made the future of legalized abortion the focal point of efforts to rally voters around the issue of judicial appointments. To a lesser extent, Democrats have also highlighted the judiciary’s role in promoting racial equality. In 2000, for example, Democrats emphasized that Bush’s election could result in the Court’s rejection of Roe and civil rights precedents, while largely refraining from criticism of the Court’s recent nullification of federal legislation on domestic violence, handgun regulation, and age discrimination.

The Court is especially difficult to transform into a campaign issue when, as now, its decisions are not broadly controversial. It is no accident that the Court has emerged as a significant election issue primarily when the Court’s general direction was broadly unpopular with significant numbers of voters. In 1924, for example, Senator Robert M. LaFollette, the third party Progressive candidate for President, attacked the “conservative” Taft Court for its nullification of economic regulatory legislation. The decisions of the “liberal” Warren Court — particularly those involving the rights of criminal defendants, school prayer, and reapportionment — emerged as election issues in 1964, when Republican nominee Barry Goldwater promised to appoint “conservative” Justices to the Court. In 1968, after the Court had continued to protect the procedural rights of defendants in such cases as Miranda v. Arizona, both Republican nominee Richard M. Nixon and American Independent nominee George C. Wallace repeatedly promised to appoint judges who would protect “law and order.”

Since the present Court is not easily tagged as “liberal” or “conservative” and its recent decisions have variously both pleased and offended voters of nearly every political persuasion, the general direction of the Court provides no lightening rod for criticism. In this context, both parties are reduced to warning voters about the danger that their political opponents will “capture” the Court, a strategy which is less likely to inspire voter enthusiasm than is a clarion call to reverse the Court’s direction.

Judicial issues also tend to have a low profile in presidential campaigns to the extent that they are redundant insofar
as voters’ attitudes toward judicial appointments merely reflect how they already feel about a presidential candidate. For example, a voter whose support for Kerry is based significantly on his or her perception that Kerry is more pro-choice than Bush is not apt to have his or her support for Kerry enhanced by the perception that Kerry is more likely to appoint pro-choice judges to the federal bench.

Moreover, voters may ignore judicial issues to the extent that they are sophisticated enough to know that many Supreme Court justices have frustrated the expectations of the presidents by whom they have been appointed. Informed voters should understand, however, that the ideologies of Justices generally satisfy the appointing presidents and that there is a rough correlation between the outcome of presidential elections and the Court’s decisions. Moreover, the increased scrutiny of candidates for all levels of federal judgeships by the President, the Senate, the news media, and public interest groups may have reduced the risk that Justices will not conform to presidential expectations.

The Court likewise is difficult to bring into focus as an election issue since it is unclear which Justices will leave the Court at what time. The Court would likely remain much the same, for example, if only “liberal” Justices left the bench during a Kerry presidency or if only “conservative” Justices departed during Bush’s second term. Similarly, the Court may seem like an abstract election issue because it is impossible to predict what types of cases the Court will agree to hear. Moreover, the Court’s work also may lack immediacy and relevance to many voters because cases take so long to reach the Court and often result in ambiguous decisions

Candidates also often have ignored judicial issues for fear of alienating voters. In the present campaign, some commentators believe that Bush fears that he would drive away moderate voters if he pledged to appoint raw-meat conservatives to the Court. Even though Bush during the second debate denounced “activist judges” and his garbled reference to the Dred Scott decision has been interpreted as an effort to re-assure pro-life voters that he would not appoint pro-choice judges, his rejection of a litmus test for judicial appointments during the third debate may have been intended to reassure moderates that he did not intend to appoint judges who would roll back civil liberties, including abortion. Since polls show that most Republican voters favor legalized abortion but that many pro-life G.O.P. voters regard abortion as the paramount political issue, Bush is prudent to remain relatively reticent about Supreme Court appointments. Kerry’s announcement during the second debate that he would not appoint a Justice who opposed legalized abortion was a surprising departure from the general tendency of presidential candidates to refrain from making specific commitments with regard to judicial nominations. It may have reflected both his perceived need to re-assure his pro-choice base and his belief that he already had little hope of winning support from strongly pro-life voters.

Similarly, candidates also may avoid attacks on the courts and judicial decisions, or refrain from making promises about the kind of judges they would appoint, for fear of running afoul of the widespread public respect for the judiciary and the perception that the judiciary is generally above politics. In contrast to the critics of the courts during the nineteenth and early twentieth century, who frequently called for curtailment of judicial review, no major political candidate or movement today questions the validity of judicial review or attacks the Court as an institution. Not since 1924, when LaFollette may have lost votes by advocating legislation to allow Congress to overturn Supreme Court decisions, has any major presidential candidate frontally attacked judicial review. Goldwater’s 1964 support for a constitutional amendment to relieve one house of state legislatures from the “one person, one vote” rule and Bush’s support for a constitutional ban on same-sex marriage would affect judicial review only over discrete subjects, leaving the basic power in tact.

Notwithstanding the same-sex marriage amendment proposal and the movement to strip federal courts of jurisdiction over Pledge of Allegiance cases, the present focus of Court critics of all political stripes is to influence the selection of those who will exercise judicial power rather than to curtail judicial power itself. The growing contentiousness of lower federal judicial nominations, together with the immense public attention that the most recent Supreme Court appointments have attracted, indicates that voters are increasingly aware of the profound influence of the federal judiciary over a wide array of public issues. Voters therefore should take judicial appointments into account in deciding how to vote in the upcoming presidential election — and in Senate elections, too. Public concern should be especially intense because of the likelihood of Supreme Court appointments during the next presidential term. At least one vacancy is likely because the average age of the Justices is nearly 78, and only Justice Thomas is younger than sixty-five. Several Justices have suffered at times from severe ill health, and there has been no vacancy for eleven years — the longest stretch of stable membership since the period from 1812 to 1823. And, of course, the president is certain to make a substantial number of lower federal court appointments during the next term. Bush already has appointed more than two hundred lower federal judges.

Some scholars and commentators have questioned whether the election is likely to have much impact upon the Court. They argue that since the Senate is likely to remain closely divided between Republicans and Democrats, either Bush or Kerry might need to appoint judicial moderates in order to avoid a bitter confirmation fight that could result in an embarrassing rejection of a nominee. The close partisan division in the Senate, however, actually might encourage the next president to make judicial nominations that represent the viewpoints of the less moderate elements of his party. Since the alignment of the Senate and House might prevent either Bush or Kerry from obtaining legislation that appeals to Republican conservative activists or Democratic liberal activists, the victor in the election might try to use Supreme Court appointments as a means of rewarding and satisfying these elements. While the prospect of Senate opposition might indeed daunt either man from nominating persons of extreme views, powerful interest groups in both parties are likely to lobby for nominees whose ideologies may veer beyond commonly accepted definitions of moderation. Since Bush certainly has not shrunk from controversy and confrontation in both foreign and domestic affairs during his first term, he might be similarly bold in making Supreme Court nominations.

Despite the impossibility of predicting which, if any, Justices will leave the Court during the next four years and which types of cases the Court will agree to hear, the election could affect a wide range of issues. The exact effects, of course, are beyond prediction. Since Justices tend to abide by precedent and prefer to avoid unnecessary controversy, it is far from clear that even the appointment of several new “conservative” Justices would result in the rejection of such landmark decisions as Roe v. Wade (1973) (which appears to have the support of six of the present Justices); Grutter v. Bollinger (2003), in which the Court by a five-to-four vote upheld affirmative action in university admissions; or Lawrence v. Texas (2003), in which the Court by a six to three vote held that state sodomy laws are unconstitutional. Similarly, it is hardly certain that even new “liberal” Justices would reverse the Court’s decision in Zelman v. Simmons-Harris (2002), which upheld the constitutionality of a school voucher program, or reject the the
ories of federalism which led the Court during recent years to strike down the federal domestic violence statute and gun regulation laws by five to four votes.

It is almost impossible to deny, however, that there is a high likelihood that Justices appointed by Bush appointees would differ significantly from Kerry appointees in their views on a wide range of issues, including federalism; abortion; separation of church and state; school vouchers; gay rights; affirmative action; the rights of criminal defendants; and regulatory takings that affect environmental law. Even if the Court continues to adhere to Roe v. Wade, for example, Bush appointees would seem more likely than Kerry appointees to narrowly interpret Roe in the many unresolved issues involving abortion, including the constitutionality of the Partial Birth Abortion Act. Moreover, it is possible that the Justices appointed during the next four years will consider issues which are not yet foreseen, but upon which the Court’s decisions will divide along lines that reflect the ideological differences between Bush and Kerry. Indeed, voters who have strong views about individual issues may find judicial appointments a more reliable compass for selecting a president than the often deliberately ambiguous pronouncements of presidential candidates and party platforms since voters can more easily predict what a president’s judicial nominees would do on the Court than what the president would do in the Oval Office, particularly if the president faces a hostile Congress.

Since the decisions of the Supreme Court and other federal courts have such a profound impact upon American life, voters should consider how the election will affect judicial decisions. Even though such decisions are often abstract, complex, and unpredictable, voters can rationally make general assumptions about how Bush or Kerry nominees would rule on a wide range of critical issues.

William G. Ross, a professor of law at the Cumberland School of Law at Samford University, teaches and publishes on the subjects of legal history, professional responsibility, and constitutional law. His works include “The Role of Judicial Issues in Presidential Campaigns,” 42 SANTA CLARA L.REV. 391-482 (2002).
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