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The Supreme Court’s absence from the 2016 campaign

The Supreme Court has memorably been labeled “the least dangerous branch” of the national government, yet if the 2016 elections result in more divided government, its relative power will increase in the face of continued gridlock. Moreover, with four justices over 75, the Supreme Court will see its direction shaped indelibly by the president who has the opportunity to fill the vacancies that from an actuarial standpoint are likely to occur. Yet the Court has received little attention from either party’s presidential candidates, and this relegation has flummoxed various astute political observers. After describing the multifarious and highly consequential issues the Court will face in coming years, and how new appointments will determine the direction the Court will take on these and many other issues, Ed Kilgore at New York‘s Daily Intelligencer raises the possibility that this year might be different if

either Sanders (who, again, views campaign-finance reform as a condition precedent for much of his agenda) or Ted Cruz (the self-proclaimed “constitutional conservative”) wins a nomination. It’s also possible a Hillary Clinton presidential candidacy would make defense of Roe v. Wade or reestablishment of voting rights a public priority. More likely, SCOTUS will continue to be an underground issue of immense importance to constituency and interest groups but only discussed by the candidates indirectly or via dog whistles to the initiated.

The mystery of the Supreme Court’s low visibility certainly has something to do with the plethora of competing high-profile issues (e.g., security, the economy), as well as the presence of high-wattage figures who prove attractive to a press inclined to explain political trends in personalized rather than institutionalized terms. It might also have something to do, as Edwin Chemerinsky puts it, with a public perception of the law that insufficiently recognizes how much discretion the justices possess, and thus fails to ascribe sufficient significance to the composition of the Court.

Kilgore’s reference to constituency and interest groups captures so much of why candidates have not spoken more directly of the Supreme Court. Primary electorates tend to be more ideologically extreme than the electorate at large, and they tend to be more engaged in politics. If general election voters are akin to casual supporters of a football team, primary voters are the fans who drive a hundred miles to watch their team in training camp, and show up on snowy December days when their team is 2-12. But if the diehards are the core audience for a primary campaign message, and they are more likely than the general electorate to recognize the Court’s significance and to link it to presidential election outcomes, why not talk more about the Court now, rather than downplay it?

The best answer, as I see it, is that there is little to be gained in a contested primary campaign from raising the issue. Hillary Clinton and Bernie Sanders are likely to nominate similar people to the federal bench; even if Sanders would prefer someone further left than would Clinton, he would find himself constrained by the Senate, irrespective of which party controls the chamber. Similarly, while the Republican candidates might disagree on the degree to which Chief Justice Roberts’s apostasy has made him this generation’s David Souter, they agree that Souter 2.0 is worth avoiding at all costs. And activists on each side know that the differences between their respective party’s candidates on nominees pale in comparison to the differences between parties. So once the candidates have signaled their bases about their general trustworthiness concerning the Court, there is not much upside to going into greater detail, and some potential risk of misspeaking or otherwise coming into conflict with judiciary-focused activists.

As someone who studies and teaches about judicial politics for a living, I would be delighted to see this campaign feature a more vigorous debate about the Supreme Court. But unless debate moderators or primary voters can successfully pressure the candidates to address the subject, that debate won’t be occurring before the general election campaign.

Update (2/13/16): It seems I’ve spoken too soon.

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