Supreme Court as a Voting Issue
Dahlia Lithwick takes to the pages of FireDogLake to explain why, in her view, liberals are much less excited about the Supreme Court than conservatives:
My own impression, having covered the past two presidential elections is that most liberals simply don’t vote with the composition of the Supreme Court in mind at all, or that it ranks somewhere in their top 14 concerns, but rarely breaks into the top five. There is just no analogue on the political left for the focused, court-obsessed judge-watchers who populate the conservative base and holler “activist judge” every time a decision comes down with which they disagree.
I have some theories for why this is the case but look forward to yours: What the Supreme Court does is so removed from public life; the lag time between a court decision and its effects on the ground can be enormous; the court’s work is shrouded in jargon and secrecy; and despite the advancing years of the court’s liberal wing, it’s very hard to scare voters into caring about the Supreme Court with an election ad that warns:
Some justices may leave the court at some point soon. Some other justices may replace them and those new justices may decide some cases we don’t know about yet. And that might be bad for America.
The reason the conservative base is so very angry at the judiciary — decades of Republican appointees steadfastly but inexplicably refusing to overturn Roe v Wade — is the same reason liberals have become so complacent. We take new justices at their word that they won’t disturb settled precedent. We get sucked into the expert claims that the court decides too few cases (only 67 this term!) to really matter, or the characterization of those decisions as humble or narrow, even when many are nothing of the sort. We secretly believe that no matter who departs the court and who replaces them, the Warren-era achievements are somehow frozen in constitutional amber.
That strikes me as more-or-less right. I’d add, though, that while the Court might be getting more ideologically conservative, the law and society isn’t. Beyond that, while Anthony Kennedy, the current “swing Justice,” is more conservative than his predecessor, Sandra Day O’Connor, centrist conservative judges tend to be extremely deferential to precedent.
There’s simply no analog to the great civil rights controversies of the 1950s and 1960s where the Supreme Court can force the hand of the culture. The closest thing is probably gay rights which, frankly, just isn’t that close.
Arguably, the most salient judicial “voting issue” for liberals is abortion. That issue reflects both the above trends well. Whatever Kennedy’s views on the merits of the Roe precedent, he now views it as settled law, meaning the arguments are now on the very margins of the debate (late term abortion, the precise point of “viability,” and the like). Further, even if, say, a John Paul Stevens were replaced by a Samuel Alito type — the furthest right Justice one can imagine a very Democratic Senate confirming — and they somehow decided to overturn Roe’s Constitutional right to abortion, we wouldn’t return to anything like a pre-Roe status quo.