The Supreme Court, absent from the election debate

Reporter September 30, 2012

Steven R. Shapiro is the legal director of the American Civil Liberties Union, and, as you might expect from someone in that job, he watches the Supreme Court as closely as anyone. He’s a savvy analyst of the court’s work and the public’s reaction to it.

But he began a recent briefing for reporters, about the term that begins Monday, with a confession about something he said he got completely wrong when the court completed its work in June.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. View Archive

He said the court’s actions had guaranteed that the justices “would be a major issue in this year’s presidential campaign.”

Shapiro hardly seemed to be going out on a limb after one of the court’s most substantive and controversial terms in years, marked by round-the-clock news coverage of the court’s 5 to 4 decision to affirm the constitutionality of President Obama’s health-care law.

But the reality has been just the opposite.

“It has been quite remarkable to me the extent to which talk about the Supreme Court has been entirely absent from the presidential campaign,” Shapiro said. “As compared to past years, where there perhaps was less reason than there is this year to talk about the Supreme Court during the campaign, I have literally not heard it mentioned, even once.”

Obama and Republican rival Mitt Romney rarely mention the justices in campaign speeches. A quick perusal of the addresses delivered at the Republican National Convention in Tampa does not turn up a single mention of how Romney would go about filling vacancies on the court.

And at the Democratic National Convention in Charlotte, the court was mentioned only to highlight Obama’s nominations, in appeals to certain constituency groups.

Rep. Charles A. Gonzales (D-Tex.), chairman of the Congressional Hispanic Caucus, dealt with the court in one line: “We made history when President Obama appointed Sonia Sotomayor, a proud Latina, the first Hispanic Supreme Court justice.”

And Obama’s sister, Maya Soetoro-Ng, needed even fewer words. “He named two brilliant women who understand our lives to the Supreme Court,” she said, referring to Sotomayor and Justice Elena Kagan.

That’s about it.

The Supreme Court is almost always the dog that doesn’t bark in presidential campaigns, no matter how much scholars and activists on both the left and right lecture about its importance.

They are right, of course, that a Supreme Court justice with life tenure is one of the most lasting legacies a president can leave. Consider that Ronald Reagan’s last election was in 1984 but one of his choices, Justice Anthony M. Kennedy, is the pivotal justice on today’s court.

On a divided court, Kennedy is the justice most likely to decide questions of gay rights, affirmative action, who is eligible for the death penalty and even how the presidential campaign itself is financed.

Kennedy is also one of four justices on the court who are still going strong when most mortals would be planning afternoons of bridge or fishing. Kennedy and fellow Reagan nominee Antonin Scalia are both 76. Among the justices on the left, Justice Stephen G. Breyer is 74 and Justice Ruth Bader Ginsburg is 79.

Ginsburg is considered the most likely to leave, especially if Obama is reelected. But she constantly makes it clear she is in no hurry and wants to remain on the bench at least three more years to match the tenure of Justice Louis Brandeis, who retired at age 82.

The tiny, frail-looking Ginsburg is actually the iron woman of the court — she bid farewell to lawyers at a holiday party last winter by saying she was off to meet her trainer.

She has battled cancer twice in her 19-year Supreme Court career without missing a day of oral arguments, and she told Joan Biskupic of Reuters this summer that she worked through the hectic month of June with two broken ribs.

The court might have been at the center of the campaign if the health-care vote had come out differently. Obama showed he was not above directly criticizing the court when he called out the conservative majority in his 2010 State of the Union address for its decision in the campaign finance case Citizens United v. Federal Election Commission.

He had laid the groundwork for doing more than that if the five Republican-appointed justices had declared the Affordable Care Act unconstitutional.

Instead, Chief Justice John G. Roberts Jr. voted with the four Democrat-nominated justices to uphold the act.

Democrats have muffled their criticism of the Roberts court, and Republicans feel let down, said Curt Levey, whose conservative Committee for Justice is always active in the judicial nomination battles.

Levey said he expects at least one of the questions at this week’s presidential debate will be about the court, and that might spark more interest in the issue.

As for the justices, they would just as soon be left out of the political discussion. And last term, the scrutiny was particularly intense.

Kagan was asked about that at a recent appearance at the University of Michigan Law School.

“In a way, it’s much nicer to operate in relative quiet and tranquility,” Kagan said. “But we don’t get to do that, because we’re important — this is an important institution.”

She drew laughter when she added, “I guess I would say it’s always more enjoyable not to be criticized than to be criticized. And probably, sort of from a day-to-day perspective, it’s actually more enjoyable not to be talked about than to be talked about. . . . But that’s not our choice.”

Alice Crites contributed to this report. For previous High Court columns, go to washington post.com/fedpage.

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