As the Supreme Court begins its 2012-13 term, it likely does so for the last time in its present configuration. The Court’s four septuagenarians surely have replacement on their minds. So the next president will likely have the opportunity to make two Court appointments, possibly more.
Not since President Eisenhower has a single president nominated a majority of the Court, and these appointments could cement the Court’s current center-right ideology, or lock in a liberal hegemony for a generation.
Do voters care?
Not specifically. Over the summer the Supreme Court-dedicated website “Scotusblog” hosted a symposium on the question what role the Supreme Court would play in the November election. The participants, liberals and conservatives alike, were in vigorous agreement that the Court was unlikely to play much role at all as an election issue. Chief Justice Roberts’ surprise vote to uphold the Affordable Care Act appears (perhaps calculatedly so) to have neutralized the Court as an issue for both candidates.
But should voters care? Absolutely.
The past half century has seen the relentless expansion of the branch of government Alexander Hamilton famously described in Federalist Paper No. 78 “the least dangerous to the political rights of the Constitution.” Since the Warren Court placed itself firmly athwart American politics and culture, the Court has waded doggedly and repeatedly into those thickets. In truth, little lies beyond the reach of the judiciary.
And what a difference one vote makes. For want of a vote the federal government could not tax people to coerce purchase of a favored product; EPA would not be attempting to regulate global warming; Congress could not, but states could, prohibit the partial delivery and killing of a child; citizens would not have an individual right to bear arms; local government could not take private property and hand it over to a corporation for private development; public sector unions could exact worker funding without consent; plaintiffs lawyers could pursue massive class actions on behalf of millions of undifferentiated plaintiffs; faith-based organizations would be free to register at a public university while retaining the ability to shape their membership to match their credo; and firefighters could be tested and treated differently on the basis of their race.
So the real plum of the 2012 election is not just being able to call the shots for the next four years, but to pick the people who will call these “balls and strikes” for the next forty years.
Yes, voters should care, and passionately, about the sort of judges the next president picks.
Voters must demand federal judges who will faithfully and evenhandedly apply the laws and the Constitution as written, regardless of their own personal or political preferences. Nominees should be intelligent and well-qualified, but also must have a track record of commitment to the rule of law and the Constitution.
Judicial nominees must appreciate that as a judge they doff whatever political mantle brought them there, and don the black robe of fealty to the Constitution and the laws of the United States.
Supreme Court nominees in particular must not just mouth the words, but must have lived, and preferably judged, by them. Nominees must have a real and reviewable record demonstrating the force of character to make fair and impartial decisions, even in the face of external pressures to rule on other grounds. Long term quality cannot be sacrificed for short-term political expediency.
When we fail to demand this of our elected leaders we abdicate our democratic prerogatives. Politicians too often find it convenient to punt hard issues to the Courts; and courts sadly have entertained the invitation.
Unsurprisingly, cries of “judicial activism” have rung from the right and the left, depending on whose ox was being gored. Quality judges must have the fortitude to resist that siren song, to enforce the law as written, and to leave it to the political branches and the states to address clearly and accountably the challenges of the day.
This November, voters should demand nothing less.
Gordon D. Todd practices Government Investigations and Litigation at Sidley Austin LLP in Washington, D.C. He previously served as Special Counsel for Supreme Court Nominations at the United States Department of Justice and is a former law clerk to Justice Samuel Alito.