The presidential candidates have debated each other for 270 minutes, yet neither has expended even a second on a crucial campaign issue that has a profound impact on our lives.
Joe Biden managed to mention it in the waning moments of the vice presidential debate – “Keep your eye on the Supreme Court,” he said – but when America is in campaign mode, we tend to avert our eyes from this subject. Candidates rarely talk about the future composition of the court, apparently out of fear that they will be accused of politicizing the august institution.
Breaking news, folks: The court is and always has been politicized. Its members are chosen by political animals. For that reason alone, it shouldn’t get a pass during the campaign season.
The five justices who make up the court’s conservative majority were nominated by Ronald Reagan and the Bushes. The other four were chosen by Bill Clinton and Barack Obama. The resulting ideological divide is so obvious that I need not describe it.
Moreover, four of the current nine are well into their 70s. The oldest, Clinton appointee Ruth Bader Ginsburg, turns 80 in 2013.
Inexplicably, the presidential candidates don’t talk about how they would shape an institution that has the final say on the law governing our laws. And the stakes in this election could not be more evident. If Ginsburg were to leave, voluntarily or otherwise, during a Romney administration, her replacement would likely be a conservative, thus giving us the most rightward court since the early days of the New Deal.
As Biden said during the debate last week, “The next president will get one or two Supreme Court nominees. That’s how close Roe v. Wade is” to being overturned. And abortion is hardly the sole battleground. The court is the final stop for all the hot-button issues – affirmative action, gay marriage, immigration – and it sets the rules for our conduct of politics. Take the 2010 Citizens United decision, which allows billionaires to spend limitless sums on negative ads in the name of free speech.
Washington activists on the left and right recognize the stakes. Curt Levey, who directs the conservative Committee for Justice, recently told the Associated Press that the winner of the 2012 election will likely determine whether the court tilts decisively to the right or goes left a la the Earl Warren court of the 1950s. The consequences should be obvious to Democrats as well; the GOP’s dominance of the White House in the late 20th century produced the court majority that narrowly handed the 2000 race to George W. Bush. Yet when the Pew Research Center asks voters to cite the issues that matter most, the Supreme Court never makes the list. That alone helps explain why Obama and Romney, like most of their predecessors, keep their lips zipped on the matter.
Richard Nixon was a rare exception. In his 1968 “law and order” campaign, he assailed the Warren court as soft on criminals and too liberal on civil rights, a tactic that helped him reap the votes of conservative Southerners. But in every subsequent presidential race, it’s been deemed bad form to inveigh against the court.
Voters instinctively see the court (or prefer to see it) as an independent entity, immune to partisan crossfire. In addition, voters are focused on the here and now – the job market, their kids’ tuition – not abstruse theories about how an unknowable mix of justices might rule on something years from now.
The justices’ behavior post-confirmation is unknowable, too. Warren was a Republican appointee; nobody could have guessed that he would plow historic ground on civil rights and civil liberties. David Souter was also a Republican appointee; even after his retirement, conservatives are still denouncing him as a turncoat. Three Republican appointees – Souter, Anthony Kennedy and Sandra Day O’Connor – have repeatedly saved Roe v. Wade. Conversely, Democratic appointee Byron White often turned out to be an ally of the conservative bloc.
And few imagined that Chief Justice John Roberts would cast the pivotal vote to uphold Obamacare last spring – a ruling that infuriated conservatives and inspired right-wing radio host Michael Savage to contend (without evidence) that the Republican appointee had been negatively affected by epilepsy medication.
But, with those caveats, let’s go back to the vice presidential debate and its passing reference to the Supreme Court. Moderator Martha Raddatz asked: “If the Romney-Ryan ticket is elected, should those who believe that abortion should remain legal be worried?” Paul Ryan replied: “We don’t think that unelected judges should make this decision.”
Decoded, his answer was: Yes, they should be worried.
That exchange demonstrates why the court should be a top-tier issue. Maybe we should spend a tad less time arguing about which candidate is ruder, and spend more pondering how each might tilt the governance of the nation for generations to come.