JURIST Guest Columnist William G. Ross of the Samford University’s Cumberland School of Law says that the likelihood of vacancies on the Supreme Court during the next four years should make the Court an important issue in the election, even though it has largely been ignored by the current candidates…

Although the ideological composition of the US Supreme Court could be the most significant long-term consequence of the 2012 presidential election, judicial appointments have been virtually a non-issue during the autumn campaign and the primaries that preceded the party conventions. The silence of both US President Barack Obama and Republican presidential candidate Mitt Romney has been deafening, and their surrogates and supporters have also mostly failed to point out the election’s potential impact on the Court.

While predictions about Supreme Court vacancies are always chancy, there is a significant possibility that the person who serves as president during the next four years will make at least one appointment since four justices are at least 74 years old: Justice Ruth Bader Ginsburg is 79 years old, Justices Antonin Scalia and Anthony Kennedy are 76, and Justice Stephen Breyer is 74. The departure of even one of these justices could tip the balance of the Court, which in so many landmark decisions has divided by a vote of five to four. Since Kennedy has been the swing vote in so many cases, his replacement with a more decidedly “liberal” or “conservative” justice could profoundly alter the Court’s direction. Similarly, the replacement of Ginsburg or Breyer with a justice appointed by Romney could help ensure a solid “conservative” majority for the Court, while the replacement of Scalia with a justice appointed by Obama could go far in moving the Court toward a more “liberal” direction.

The election could therefore affect the outcome of decisions on a multitude of issues, including abortion; affirmative action; voting rights; same-sex marriage; criminal procedure; and the scope of federalism, the taxing power and the commerce clause. The next president likewise has the power to substantially shape the character of the lower federal judiciary. The highly public controversies over the Court’s five-to-four decision on campaign financing in Citizens United two years ago and the Court’s five-to-four decision last summer in National Federation of Independent Business v. Sibelius upholding the constitutionality of the Patient Protection and Affordable Health Care Act ought to have renewed and sharpened public awareness of the Court’s political significance and kindled public concern about the election’s impact on Supreme Court appointments. One also might expect the Court to be a relatively salient issue in the present campaign because there are no overriding issues, not even economic recovery, that are so pervasive as to push the Court into the background.

The prospect of judicial appointments also might influence voting since the sharp and close division of the Court in so many cases contrasts with what many voters perceive as the lack of any significant difference between Obama and Romney on many key issues, including foreign policy, fiscal prudence, illegal immigration, the regulation of financial institutions and protection of the natural environment. Both candidates therefore might be expected to perceive judicial appointments as an ideal way to differentiate themselves since it would be difficult to deny that Obama and Romney would nominate very different kinds of justices. Perhaps one of the reasons why neither candidate has seized this opportunity is because most voters apparently do believe that there are important distinctions between the Republican and Democratic candidates, as is indicated by the surprisingly low poll numbers of the third party candidates. The refrain that the Court is the only reason to vote for Romney or Obama — rather than for Jill Stein (Green), Rocky Anderson (Justice), Virgil Goode (Constitution) or Gary Johnson (Libertarian) — is heard mostly among progressives, traditional conservatives and libertarians.

The only high-profile appearance of the Court during the campaign was little more than a flash and a flicker, when Vice President Joseph Biden, during his debate with Republican vice presidential candidate Paul Ryan, mentioned the Court briefly and only in the context of abortion. Biden declared: “The next president will get one or two Supreme Court nominees. That’s how close Roe v. Wade is. Just ask yourself: With Robert Bork being the chief adviser on the court for Mr. Romney, who do you think he’s likely to appoint?”

Biden’s point is well-taken since both opponents and supporters of Roe v. Wade agree that future Supreme Court appointments could profoundly affect the scope of abortion rights. To the extent that Biden hoped to rally “pro-choice” voters, however, his effort may have been blunted to the extent that one might question how many of today’s voters remember Bork, whose nomination to the Court by US President Ronald Reagan 25 years ago was rejected by the US Senate in large measure because Bork was highly critical of Roe. The firestorm over Bork’s nomination probably seems like yesterday to the soon-to-be septuagenarian Biden, but it’s unknown or ancient history to most of today’s electorate.

Biden, who was intimately involved in the Senate’s deliberations on numerous Supreme Court nominees during 35 years as a member of the Senate Judiciary Committee and eight years as its chair, would appear to be the ideal person to interject judicial issues into the campaign. Thus far, however, Biden has had little to say beyond his reference to the Court in the debate. He was similarly reticent during the 2008 campaign.

Obama also largely avoided references to the Court in 2008. This year he may have had even more incentive to avoid judicial issues since he was so widely attacked for his criticism of Citizens United in his 2011 State of the Union address and his comment about judicial review in a speech last April in which he predicted that the Court would not take the “unprecedented [sic], extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” An effort by Obama to emphasize judicial issues could re-ignite allegations that he is disrespectful toward the Court or is trying to politicize it. Accordingly, Obama has hardly mentioned the Court during the campaign aside from a passing reference during the first debate and an interview with Rolling Stone in which he expressed disagreement with Chief Justice John Roberts’s narrow interpretation of the commerce clause in Sibelius.

Meanwhile, Republican attempts to call attention to the importance of judicial appointments may have been stymied by Roberts’s tie-breaking vote in Sibelius. Although Roberts’s conclusion that the statute could not be sustained under the commerce clause may have had greater constitutional significance than his determination that taxing power permitted the legislation, this distinction seems to have made no impression on most conservatives who have execrated Roberts for his vote. Many of these voters also seem unimpressed that Roberts has otherwise been such a steadfast member of the Court’s conservative wing. For Romney and the Republicans, Roberts’s vote may provide too fresh and too painful a reminder that justices do not necessarily conform to the political expectations of the presidents who appoint them. In fact, however, the increasing scrutiny of Supreme Court nominees greatly diminishes the likelihood that a nominee’s judicial record will disappoint the president who nominates her. Former Justice David Souter, appointed in 1990, was the last justice whose judicial record was a surprise. All six of the justices appointed since then have largely conformed to expectations at the time of their appointment.

The Court’s low profile in the present election is the norm rather than the exception. Judicial issues also were largely ignored in the 2008 election, when the financial crisis and the recession dominated the campaign, and in 2004, when national security issues predominated. Not since 2000, when there was no overriding issues at stake, have candidates given substantial attention to judicial issues, and even then the Court was not a key issue. Only four times during the past century — in 1912, 1924, 1964 and 1968 — has the Court been an important election issue.

The Court has emerged as an important campaign issue only when the Court has alienated a distinct bloc of voters with a broad range of issues. In 1912 and 1924, a “conservative” Court’s nullification of economic and social regulatory legislation provided a lightening rod for criticism by progressives. In 1964 and 1968, the Warren Court’s “liberal” decisions expanding the rights of criminal defendants, promoting racial desegregation, prohibiting state-sponsored public school prayer and requiring equal population in voting districts became major election issues. Barry Goldwater, the Republican nominee in 1964, castigated many of those decisions and promised to appoint “strict constructionist” judges. Four years later, the Republican nominee Richard Nixon and the American Independent candidate George Wallace likewise promised to appoint judges who would conform to their visions of judicial restraint.

Judicial issues are more difficult today to forge into campaign issues because the decisions of the present Court are quite diffuse. Since the end of the Warren Court in 1969, the Court has defied any simple “liberal” or “conservative” label. During the past several years, for example, the Court has dismayed many political “conservatives” and pleased many “liberals” in decisions protecting the rights of alleged terrorists and prohibiting capital punishment and life sentences for crimes committed by juveniles. During the same period, the Court has dismayed many “liberals” and gratified many “conservatives” by incorporating the Second Amendment into state law, sustaining the federal Partial-Birth Abortion Act and invalidating the use of racial criteria in making school assignments. All of these were five-to-four decisions.

The Court’s shifts between its ideological blocs were most recently demonstrated by Citizens United, which dismayed so many “liberals,” and Sibelius, which disappointed so many “conservatives.” And, in Arizona v. United States, the Court last summer sent mixed messages about the constitutionality of state legislation to restrict illegal immigration. These decisions frustrate efforts by either major party to portray the Court as wayward and to vow to transform it.

Another reason why voters may be apathetic about judicial issues is that many voters are not as easily labeled as “liberals” or “conservatives” as are virtually all of the justices. For example, many voters who oppose abortion also oppose capital punishment. Other voters who favor national health insurance may be hostile toward affirmative action, and some voters who favor tighter regulation of campaign spending may prefer to constrict the constitutional rights of criminal defendants. Voters whose views do not fit neatly into “liberal” or “conservative” may therefore not especially care whether “liberal” or “conservative” judges dominate the federal courts insofar as either way the courts will render some decisions that they like and others that they dislike, at least to the extent that their constitutional interpretations are aligned with their policy preferences.

Even when the Court has been more clearly identified with a particular political ideology, politicians have had trouble making it into a political issue because judicial issues are complex and do not easily lend themselves to the meretriciousness of presidential campaigns. Candidates naturally avoid discussion of specific Supreme Court decisions since most are too nuanced and arcane for voters to comprehend. The reluctance of candidates to address issues becomes even more pervasive as campaigns are increasingly dumbed down into soundbites. When candidates discuss the Court, they therefore tend to confine themselves to a few salient issues, particularly abortion, that resonate with a broad spectrum of voters.

Candidates also may have little incentive to address judicial issues since voters’ attitudes toward judicial candidates often merely reflect how they already feel about a presidential candidate. For example, a voter whose support for Obama is based heavily upon his or her perception that Obama is more pro-choice than Romney is not likely to become any more supportive of Obama because the voter perceives that Obama is more likely to nominate pro-choice judges to the federal courts.

Judicial issues may, however, help galvanize a candidate’s political base and stimulate fund raising. Indeed, it has been various “liberal” and “conservative” activist organizations that have emphasized judicial issues during recent elections. Organizations that focus on judicial issues agree that the Court should be an important election issue and are attempting to alert voters to the election’s likely affect on the Court. For example, Curt Levey, executive director of the conservative Committee for Justice, has warned that the Court is “at a tipping point.” Similarly, Nan Aron, president of the liberal Alliance for Justice, believes that it “would greatly help the president to talk about the Supreme Court” since the impact of the judicial appointments of either candidate “will last long after he leaves office.”

Despite the many difficulties of addressing judicial issues, candidates and political activists should make more of an effort to remind voters that the election could significantly affect the future decisions of the US Supreme Court and other federal courts. Since the decisions of those courts so profoundly influence the lives of so many US citizens, the courts are too important to ignore in a presidential campaign.

William G. Ross, the Lucille Stewart Beeson Professor of Law at the Cumberland School of Law at Samford University, teaches and publishes on the subjects of constitutional law, constitutional history, and legal ethics. His website is williamgeorgeross.com.

Suggested citation: William G. Ross, The Supreme Court Should Be a Key Election Issue, JURIST – Forum, Oct. 31, 2012, http://jurist.org/forum/2012/10/william-ross-scotus-election.php.