American Crossroads

Disorder in the Court

By Thomas M. Keck

A vote for a president is seen as a vote for a future Supreme Court. But these days it’s potentially a vote for a quite different institution.

Special Series: American Crossroads
Eight faculty experts bring context and historical perspective to this year’s election.

This November, voters on both sides of the aisle will be looking at presidential candidates, but will also be thinking about each candidate’s likely nominations to the Supreme Court. There’s a lot at stake. The Court’s docket for the current session includes cases with a larger than normal potential for blockbuster decisions impacting abortion, LGBT rights, immigration, separation of church and state, and perhaps most important, executive power. These election-year decisions may remind voters that their choice of president will have a fundamental effect on the Court, as well.

The Supreme Court hasn’t always figured so prominently as an election issue. That began to change with Roe v. Wade, after which Republicans made the make-up of the Court an ascending issue. Now, with conservatives controlling both the Court and Senate, it’s a key issue for Democrats too.

When the Court appears more political than usual, then the Court’s legitimacy with the American people suffers.

Not only do we suffer from partisan polarization in Congress, but it trickles down to the Court. Thirty years ago, there were heated debates between liberals and conservatives in Congress, but ideological debates didn’t fully match partisan lines, because there were liberal Republicans and conservative Democrats. Similarly, on the Court, even when the justices were sharply divided, their opinions did not fully track with partisan divisions. That’s no longer true in Congress, and it’s no longer true on the Court either.

The Supreme Court occupies a sort of hybrid legal/political position. While clearly a legal institution, the Court is also a political institution; decisions are in part politically motivated and carry enormous political consequences. But when the Court appears more political than usual—when the balance seems out of whack—then the Court’s legitimacy with the American people suffers. Right now, we have a president who openly talks about taking control of the Court. As a result, voters may be more inclined to vote on that basis, with Republicans in support and Democrats talking about Court reform and expanding the number of seats.

That’s not unprecedented. Since at least FDR, presidents have pushed against constitutional limits and tried to expand presidential authority. But Trump has pushed that further than anyone, showing little inclination to abide by constitutional limits. He’s gotten little resistance from the current Court, and, indeed, some of the conservative justices exhibit a very broad conception of presidential power under our constitution. If Democrats win both Congress and the White House in November, I think we’ll hear more about changing the size and structure of the Court. The policy stakes are extraordinary.

We find ourselves amid a debate not just about who is on the Supreme Court but what role it plays. Voters are going to help settle that debate.

<< Previous article in series