The US Supreme Court in some ways is a more prominent issue in this year’s election than it has been in most previous elections, although its influence on voters is uncertain.
As in every presidential race for the past forty years, abortion is the focal point of discussions about how the election might affect the Court. The Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade (1973) and expanded the rights of states to restrict abortion, has motivated Democratic nominee Kamala Harris and other Democrats to warn that a “conservative” Court will continue to curtail personal liberties if a Democrat is not elected to make appointments which could replace “conservatives” with more “liberal” Justices. Last week, for example, Tim Walz pointed out to a Wisconsin audience that the next President might make several appointments. There is evidence that Dobbs itself may motivate some voters, particularly women, to vote Democratic in hope that Democrats can overturn or ameliorate Dobbs through legislation or presidential action. Dobbs likewise may motivate the Republican base by demonstrating how Court appointments by Republican presidents can significantly affect important issues. Republican nominee Donald J. Trump boasts that his three appointments to the Court resulted in its rejection of Roe.
The Democratic candidates and other party leaders generally have not discussed other recent decisions in which the Court has overturned or reinterpreted precedents, probably because those cases are too complex to fit into the sound bites which increasingly dominate political discourse. Although presidential candidates have always found that serious discussion of judicial issues is too abstruse for the hustings, such discussion has become virtually impossible as the quality of campaign rhetoric has declined. For example, the Court’s decision in Kennedy v. Bremerton School District (2022), which bolstered barriers to lawsuits alleging violations of the establishment clause, would seem to provide fodder for Democratic criticism of the Court, but it has gone mostly or entirely unmentioned in the campaign, probably because the facts are too complex and the issues are too abstract to reduce to a rousing stump speech or a ten second slot in a television commercial. Similarly, the Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen, which raised barriers to challenges to gun control laws, is largely absent from the campaign even though this decision would seem like a ripe target for Democrats.
Although parties in every election for the past several decades have attempted to motivate their bases by pointing out the importance of judicial appointments, such warnings may be less salient this year since this is the first election in decades in which there is no particularly geriatric Justice who is likely to retire or die during the next presidential term. Clarence Thomas, the oldest current Justice, is 76, which is relatively youthful for Supreme Court Justices, who frequently serve past the age of eighty. Thomas remains in apparent good health and has given no public hint of plans to retire. The next eldest Justices, Chief Justice Roberts and Justice Sotomayor, are only 69. In contrast, Stephen Breyer was 84 during the 2024 election campaign. In 2016, the prospect for the next president reshaping the Court was even higher because there was already a vacancy on the Court, and three Justices already were far advanced in years: Breyer (78), Ruth Bader Ginsburg (83), and Anthony Kennedy (80).
The apparent dearth of upcoming appointments may be one reason why Democrats are advocating term limits for Supreme Court Justices. Harris advocates eighteen-year term limits, the first time that a major party presidential candidate has called for institutional reform of the Court. Harris embraced this position after President Biden suddenly and rather surprisingly endorsed term limits last July after maintaining a discreet silence on proposals for Court reform that gathered momentum after “conservatives” obtained a six to three majority on the Court in 2020. Biden ignored bills introduced in 2021 by Democratic members of the House of Representatives to “pack” the Court with four new members, and instead prudently punted the issue to a Presidential Commission on the Supreme Court of the United States, which studied a multitude of Court reform measures, including Court packing and term limits, without endorsing any, even though many experts who wrote reports for the Commission were harshly critical of the present Court. Biden’s proposal, now endorsed by the Harris-Walz campaign, calls for the appointment of a Justice every two years. If the measure were applied retroactively, it would force the retirement of Clarence Thomas and John Roberts, who have served longer than eighteen years. Democratic Senator Sheldon Whitehouse of Rhode Island has introduced a bill for eighteen-year term limits.
Term limits probably are a long shot. Most constitutional scholars agree that term limits would require a constitutional amendment since the Constitution states that federal judges serve “during good Behavior,” which usually has been interpreted as requiring life tenure. More recently, however, some advocates of term limits argue that Congress could authorize term limits since Supreme Court Justice could continue serving as lower federal judges after the expiration of their eighteen-year terms on the Supreme Court. A constitutional amendment would be virtually impossible since it would require approval by two thirds of both houses of Congress and ratification by three quarters of state legislatures. Even ordinary legislation would be difficult to enact since even many Democrats would be likely to oppose a measure that could erode judicial independence. If, as seems likely, Republicans control at least one house of Congress after the election, such a measure almost certainly would fail even if Harris were elected.
Although the Democratic platform does not mention term limits, the Harris-Walz campaign website advocates them, without specifying whether they would be enacted through an amendment or legislation or whether they would be retroactive.
The willingness of Harris to advocate term limits is quite remarkable because previous presidential candidates have scrupulously refrained from advocating any Court reform measure which could make them vulnerable to allegations of eroding judicial independence. Only three previous significant presidential candidates have dared to propose institutional measures to curtail the power of the Court or its Justices. Running as a third-party candidate in 1912, former President Theodore Roosevelt advocated the recall of Supreme Court decisions by popular vote in referendums. In 1924, Senator Robert M. LaFollette, Sr., an independent candidate who won 17 percent of the popular vote, championed legislation to permit Congress to overturn Supreme Court decisions by a two-thirds vote. In 1968, the platform of the American Independent Party, whose candidate was former Alabama Governor George Wallace, called for periodic Senate reconfirmation of Supreme Court Justices and Court of Appeals judges.
Republican and Democratic opponents of Roosevelt and LaFollette ferociously denounced both candidates for derogating judicial independence and therefore the rule of law itself, and their proposals were used to reinforce allegations that they were dangerous radicals. This taught future presidential candidates that the Supreme Court is a third rail of American politics, and no candidate until Harris has ever again proposed any Court reform measure even though many have assailed individual decisions of the Court and some have criticized the general direction of the Court and promised to appoint Justices who would change its course. Mindful of the reaction against LaFollette in 1924, Franklin D. Roosevelt said almost nothing about the Court during his 1936 bid for reelection even though he was furious about the Court’s recent nullification of various New Deal measures and fearful that the Court would strangle the even more important Social Security laws and National Labor Relations Act. Only after his landslide reelection did he unveil his notorious and ill-fated Court packing plan. Although the Republican nominees Barry Goldwater in 1964 and Richard M. Nixon in 1968 were harshly critical of many decisions of the “liberal” Warren Court, they prudently stopped short of advocating reform measures.
The Republican platform does not mention the term limits proposal, and Republicans have been surprisingly reticent about it, perhaps because it does not undermine the powers of the Court itself. The Republican platform does, however, assail Democrats for supporting Court packing even though the party itself and Biden and Harris have not endorsed the appointment of additional Justices. The platform pledges to “maintain the Supreme Court…at 9 Justices. We will not allow the Democrat Party to increase this number, as they would like to do, by 4, 6, 9, 10, and even 12 Justices. We will block them at every turn.” [sic]
Republicans accuse Democrats of undermining the rule of law by tampering with the Court. However, Harris and other Democrats have turned this accusation back on the Republicans. They assert that it is the Republicans who are undermining the rule of law, particularly by challenging the results of the 2020 presidential election and allegedly abetting the disturbances at the Capitol on January 6, 2021. Democrats are warning that Trump, if reelected, could break the law with impunity because of the Court’s decision last summer in Trump v. United States, which held that the president has absolute criminal immunity for actions taken within his core constitutional duties and possibly for actions taken on the periphery of those duties. Harris has joined Biden in calling for a constitutional amendment to overturn the Trump decision. This is the first time in history that a Supreme Court decision involving a presidential candidate has been an election issue.
As in previous elections, judicial issues are not likely to sway many votes. Most judicial issues are too complex and abstract to engage the attention of many voters, and there is never any certainty that a vacancy will occur during the next presidential term. Moreover, many or most voters are not as politically polarized as are the Justices. For example, some voters who favor abortion rights might oppose gun control laws, others who are hostile toward affirmative action might favor national health insurance, while some who favor prayer in public school may oppose capital punishment. Voters whose views do not conform to a simple liberal/conservative dichotomy may therefore not particularly care whether “liberal” or “conservative” Justices dominate the Court since, either way, they will like some decisions and dislike others, at least to the extent that their constitutional view align with their policy preferences.
Although the Supreme Court has not emerged as an important issue in most presidential elections, one of the reasons it has had increasing salience in elections during the past few decades is because the Court has become more polarized, and because the Justices are more likely than in the past to conform to the ideologies of the presidents by whom they are appointed.
While judicial issues could potentially influence Senate races since senators must confirm federal judicial nominees, there is little or no evidence that judicial issues affect Senate races, except in rare instances in which an incumbent senator has cast a controversial vote on a judicial candidate.
Even though judicial issues might not sway many votes, every vote is important in a race which polls indicate is very tight. Since judicial appointments have widespread and long-lasting effect, the Court should be a more important issue than it is.
William G. Ross is the Albert P. Brewer Professor of Law and Ethics at the Cumberland School of Law of Samford University. He has published extensively about American constitutional law and constitutional history, including the role of the US Supreme Court in presidential elections.
