Outside the Beltway

Will The Supreme Court Be The Most Important Issue Of The 2016 Elections? Probably Not

The next President will have a profound ability to shape the future of the Supreme Court, but that is unlikely to be the most important issue on voters minds in 2016.

Doug Mataconis · Tuesday, December 2, 2014 · 7 comments

The Washington Post’s Paul Waldman is worried enough about the Supreme Court to argue that it should be the biggest issue in the 2016 campaign:

As much as we’ve debated Supreme Court cases in recent years, we haven’t given much attention to the idea of a shift in the court’s ideology because for so long the court has been essentially the same: divided 5-4, with conservatives having the advantage yet liberals winning the occasional significant victory when a swing justice moves to their side. And though a couple of recent confirmations have sparked controversy (Samuel Alito and Sonia Sotomayor were both the target of failed attempts to derail their nominations), all of the retirements in the last three presidencies were of justices from the same general ideology as the sitting president. The last time a new justice was radically different from the outgoing one was when Clarence Thomas replaced Thurgood Marshall — 23 years ago.

Whether a Democrat or a Republican wins in 2016, he or she may well have the chance to shift the court’s ideological balance. Ginsburg is the oldest justice at 81; Antonin Scalia and Anthony Kennedy are both 78, and Stephen Breyer is 76. If the right person is elected and the right justice retires, it could be an earthquake.

Consider this scenario: Hillary Clinton becomes president in 2017, and sometime later one of the conservative justices retires. Now there would be a liberal majority on the court, a complete transformation in its balance. A court that now consistently favors those with power, whether corporations or the government, would become much more likely to rule in favor of workers, criminal defendants and those with civil rights claims. Or alternately: The Republican nominee wins, and one of the liberal justices retires. With conservatives in control not by 5-4 but 6-3, there would be a cascade of even more conservative decisions. The overturning of Roe v. Wade would be just the beginning.

There’s not really anything groundbreaking in Waldman’s observations here. There is always the potential that a particular President could have the potential have a significant impact on the Supreme Court depending on who resigns during his or her time in office, and there’s no real way of predicting when that might happen. Richard Nixon named four Justices to the Supreme Court during his roughly 6 1/2 years in office, Gerald Ford had one even though he was President less than two years. After President Carter went four years without the opportunity to nominate a single Justice, President Reagan named three and each of his four successors has named two regardless of how much time they served. In addition to Supreme Court Justices, of course, Presidents also have the opportunity to shape the Judiciary at the Circuit Court of Appeals and District Court levels, where most of the work is actually done. President Cater, for example, named some 259 Judges to Circuit Court and District Court positions, while President Obama has, to date, successfully put some 288 lower court judges on the bench, just slightly below the pace of his more recent two-term predecessors. [Source] In their own way, each President has the opportunity to have a significant impact on the Judiciary, and the same will be true of whomever happens to take office on January 20, 2017.

All that being said, as Waldman notes there are some rather obvious facts that will present the next President with the potential to have a huge impact on the third branch of the Federal Government. As Supreme Court Justices such as Ginsburg, Kennedy, Scalia, and Breyer age it becomes more and more apparent that the question of who succeeds them is going to become much more than a theoretical issue at some point. At the very least, at some point each of them is going to reach the point where they decide that. for whatever reason, the time to retire has come even if that is a reality that they are reluctant to face when it does arrives, which was plainly the case when Justice Marshall resigned during the Presidency of George H.W. Bush for apparent health reasons and was replaced by Justice Thomas. No doubt, Marshall would have preferred to hold out until his replacement could be named by a Democratic nominee but, at the time, it didn’t seem likely that we’d see that day any time soon, (As it turned out, Marshall lived until there actually was a Democratic President, dying four days into the Clinton Administration but, of course there’s no way of knowing if he would have stayed healthy had he stayed on the Courts since he was by all accounts in poor health when he resigned in 1991.) Hopefully, in the case of each of these four Justices they will stay in sufficiently good health that the decision to retire will be voluntary rather than forced like Marshall’s was, but there’s no guarantee of that and, of course, there’s no guarantee against a sudden health crisis that leads to a Justice passing away before being able to retire voluntarily. Given the age of the Justices involved here, then, the law of averages suggests pretty strongly that the next President is going to have the opportunity to shape the Supreme Court in ways that no President since perhaps Ronald Reagan has.

As Jazz Shaw points out, though, there’s no reason to believe that the makeup of the Supreme Court is going to be a bigger issue in 2016 than it has been in previous Presidential elections:

I would argue that considerations about who nominates the next candidates for the Supreme Court are absolutely a valid concern for the upcoming campaign. But it’s always a consideration. Saying that this particular race is the most important election of our lifetime is a phrase which could probably be found in multiple newspapers from 1812. Whether it is Hillary Clinton or [INSERT RANDOM GOP NAME HERE] who fills up three slots on the bench after 2017, the court will change. And it will change yet again in the decades to follow. Is it important? Obviously it is. The decisions made by the court echo down the corridors of the legal system long after the individual justices are dead and gone.

But is it a “campaign issue” as such? I don’t think so. There’s really nothing specific to run on other than the generic hope that “our guy or gal wins” so they nominate “somebody who thinks like we do.” Winding up your base on the premise of staffing up the Supreme Court is the equivalent of telling them that they need to go out and vote because it would be really great if we won.

Perhaps this is what Waldman is thinking of when he talks about the potential importance of the Supreme Court on the 2016 campaign. At the very least, one could argue that the prospect of being able to reshape the balance of power on the Court will be something that hard core supporters on both sides of the aisle will have on their minds as they go to vote in less than two years. To that extent, then, perhaps the way to look at this issue of judicial appointments is as a way to motivate the base to get out and vote, which is obviously important. It strikes me, though, that this is something that is going to work both ways. Republican base voters are just as likely to be motivated by the prospect of reshaping the Supreme Court as Democratic base voters are. In the end, then, this seems like an issue that is likely to be something of a wash in that it will help both candidates get the voters they need to vote to the polls,, but that’s only half the equation when it comes to winning a national election.

Time and again, polling has shown that the issues that matters most to voters that can’t be counted as part of the hard core base are either party are economic and so-called “pocketbook” issues. In addition to these economic concerns, it’s likely that foreign policy concerns such as international terrorism, the rise of ISIS, and who knows what other crises might develop between now and then, are likely to be on voter’s minds as well. That’s not to say that other issues don’t matter, or that these voters don’t consider the question of who gets to appoint Judges and Justices to be an important one. When you ask them what matters most, though, it’s almost always the economy that end up at the top of the list while the social issues that Waldman speaks of are generally fairly far down the list. We’ve seen efforts in the past by groups by one side or the other to make judicial appointments a big issue in a Presidential race, and for the most part they have been unsuccessful, because that’s not what motivates most people to go out and vote.

So, yes, Waldman is correct that judicial appointments in general, and the Supreme Court specifically, will be an important issue during the Presidency that begins on the 20th of January 2017, but will it be the most important issue  in the campaign? I seriously doubt it.