Will the 2016 election be all about the future of the Supreme Court?

Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, looks at talk about the Supreme Court’s future influencing the 2016 election, and what any potential candidates should really be considering in their public comments.

THE STATEMENT AT ISSUE:

“Despite various health issues over the years, Supreme Court Justice Ruth Bader Ginsburg insists that she is still of sound body at age 81 (her mind isn’t in question) and has no plans to retire before the end of President Obama’s term to ensure a Democratic replacement. If she keeps to that pledge, and presuming there are no other retirements in the next two years, the makeup of the Supreme Court should be a bigger campaign issue in 2016 than ever before. It certainly ought to be.”

– Columnist Paul Waldman, online at The Washington Post, on November 28, under the headline “Why the Supreme Court should be the biggest issue of the 2016 campaign.” (Justice Ginsburg, who had a surgical procedure for a blocked heart artery on November 26, was back on the bench on Monday — five days later — and took an active part in the hearings.)

WE CHECKED THE CONSTITUTION, AND…

The Founders who wrote the Constitution were well aware of the problem of “factions” in a self-governing republic, but it likely was beyond their comprehension that America would become as deeply polarized in its politics as it is more than two centuries later. So, when it gave both the president and the Senate important roles in putting judges on the Supreme Court, it probably assumed that it was creating a system to get the best people selected, and did not anticipate that the process would become thoroughly politicized, with the nominees’ merit sometimes seeming to be a secondary issue.

Times certainly have changed. For much of the past two years, political analysts have been wondering when there would next be a vacancy on the Supreme Court, and how that would figure as the nation anticipates the choice of a new president in 2016.

Much of the focus of speculation has been on the court’s oldest member, Justice Ruth Bader Ginsburg, who will reach her 82nd birthday next March. In fact, liberal or progressive commentators have been attempting publicly to pressure Ginsburg to step aside, to give President Obama a clear opportunity to find a replacement for her before he leaves office in January 2017.

The focus on Ginsburg intensified in recent days, as she underwent a hospital operating-room procedure to open a blocked artery in her heart. It was the latest of a series of medical challenges that she has faced in recent years, and overcome — so far, not yet having called in sick to miss a day on the bench. But her resiliency has done nothing to quell the rather widespread expectation that it will not be much longer before one or more of the nine seats will be vacated, by retirement or otherwise.

With Ginsburg’s repeated public assurances that she is not yet ready to step aside, and with no indication that any of her colleagues is planning to retire, the speculation is leaping forward to 2016, when a new president will be chosen with a presumed opportunity to reshape the court, perhaps even during a first four-year term in the White House.

The problem for political analysts, though, is that the future of the Supreme Court very seldom becomes an election campaign issue.

The problem for political analysts, though, is that the future of the Supreme Court very seldom becomes an election campaign issue. It certainly did, when Richard M. Nixon made the Supreme Court, and in particular its record on the rights of criminal suspects, a dominant issue as he sought the presidency in 1968. But since then, however important the future of the Supreme Court may have seemed to some, especially in Washington, that issue seldom registers with voters out in the country. If it shows up at all in exit polling during federal elections, it is not a top priority item on voters’ minds.

Perhaps it seems an abstraction to voters, at least when there is no current seat open on the court. But the more likely explanation is that voters do not turn any discontent they have with the court’s past rulings into an active concern about what may happen at the court in future years. The kinds of controversies that will reach the court in future years are not widely perceived, because the way cases actually reach the court has a hit-or-miss quality to it.

An issue can loom large in political conversation, without winding up on the court’s agenda. One example of that kind of judicial indifference is the use of partisan gerrymandering to give one political party or the other an electoral advantage; the court simply does not regard that as a matter for constitutional review.

Another factor in the low profile of the court’s future at election time is that political candidates do not often focus on the detail of the controversies that reach the court. More often, if the court figures at all in campaign rhetoric, the discussion will be focused on bromides such as a commitment to assure that the Supreme Court does not “legislate from the bench” or does not engage in “judicial activism” — whatever those open-ended criticisms may mean.

As the election of 2016 seems to be rising on the political horizon, the conversation among politically active groups is not about what the Supreme Court of the future would be deciding, but about whether it was wrong in reaching this or that decision in the past. Democratic political operatives are aiming their criticism at decisions by the court giving corporations and rich people more power to spend money to influence elections, reducing legal protections for minority voters, giving corporations a religious exemption to providing birth-control services to their female employees, and giving millions of Americans an assured right to have a gun for personal use. There is little effort to identify future legal questions that will be on the court’s docket, such as the continuing issue of how privacy will be affected by the growth of modern information technology.

There is no doubt that Americans, in their political discourse, could have an intelligent and meaningful debate about what kind of Supreme Court they want the president and the Senate to put together for the nation. But that debate can never come about unless those who aspire to national political office find a way to lead a conversation about what the court should and could be doing to influence American life.