The Supreme Court on Monday punted on whether to hear a major challenge to part of the Voting Rights Act. They will probably still hear the case this term, but they have put off saying so. The justices’ nondecision decision is perfectly in keeping with the low profile they have managed to keep in the 2012 election. The presidential contest will almost certainly be crucial for the future of the court and the judiciary as a whole. Which means it will be crucial for the shape that American law takes. And yet we’ve barely heard a peep about the courts from Barack Obama or Mitt Romney. How have judges escaped the role of lightning rod (or maybe today I should say hurricane)?
By my count, the court came up exactly once in the debates, when Martha Raddatz asked Vice President Joe Biden and Rep. Paul Ryan about their views on abortion. Ryan said, “We don’t think that unelected judges should make this decision”—an answer as meaningless as it is bland, because the constitutionality of legalized abortion has been in the hands of the courts for almost 40 years. Biden called Ryan on it. “The next president will get one or two Supreme Court nominees,” he said. “That’s how close Roe v. Wade is.”
Yes, that’s true. The court is a bevy of septuagenarians, and while they are proving how hale and hearty they are today by keeping the court in session while the rest of Washington shuts down, the chances are that the next president will get to replace one or more of them. The age count: In March, Ruth Bader Ginsburg will turn 80 and Antonin Scalia will turn 77. Anthony Kennedy is 76. Stephen Breyer is 74. If Obama gets to replace Scalia or Kennedy, the balance of power on the court will tip, and the same is true if Romney gets to replace Ginsburg or Breyer.
In all likelihood, an Obama nominee would be a relative moderate. They don’t make liberal lion judges like they used to, and if they did, the president has shown little appetite for pushing hard to confirm them. A Romney nominee, on the other hand, would be a hard-core conservative. Make no mistake about this: The court is far too important to the Republican base for its activists to let this chance slip through their fingers—they are still having Never Again nightmares about George H.W. Bush’s selection of retired Justice David Souter. The Romney campaign’s website says, “As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.” Kennedy doesn’t make the list. Never mind his votes producing a conservative majority in Bush v. Gore, Citizens United, upholding the federal ban on so-called “partial-birth” abortion, and plenty of other cases. He is unloved by the right for his perfidy in reaffirming the core of Roe v. Wade 20 years ago, in a famous triumvirate opinion with Souter and retired Justice Sandra Day O’Connor.
Given how easy it is to see that the Supreme Court is in play (not to mention the federal appeals courts and district courts), why aren’t Romney and Obama talking about it? The obvious answer is that they’ve each concluded it’s not to their political advantage. For years, conservative have been better at motivating voters by talking about the Supreme Court. Trying to overturn Roe v. Wade is just more exciting than maintaining the status quo. So liberal and moderates have tended to be more content with the existing balance and less driven to treat the court as a priority for voting. At his 2010 State of the Union, Obama was willing to call the court out over the flood of campaign money unleashed by Citizens United and its progeny. But he got blowback for politicizing the court, and we haven’t heard any fighting words lately: For the president, stressing his future judicial picks must either turn off swing voters or leave them cold.
For Romney, the truck is to reassure his base that he means what he says about picking a justice in the unswervingly conservative mold without doing so loudly enough to scare the mushy middle. Along with this website statement about the current justices he sees as models, Romney signaled to his base with his selection of Robert Bork as a legal adviser. If you’re a member of the Federalist Society, that’s all the reassurance you need, since Bork still stands for a full-on assault on liberal-leaning constitutional interpretation. It’s also a perfect signal because no one other than Federalist Society types is paying attention to it. On abortion, Romney has been careful to distance himself from the extreme of eliminating the rape exception, which polls badly. And maybe that’s all he has to do, even though his party has embraced exactly this extreme in its own platform and at least a dozen of its own candidates for Senate endorse this view.
Most memorably, of course, we’ve heard about outlawing the right to abortion for rape victims from Missouri Republican Senate candidate Todd Akin and Indiana Senate candidate Richard Mourdock. And Obama does talk about women’s health care on the stump, including funding for Planned Parenthood. He just doesn’t connect the dots to the Supreme Court. For that, the best place to go is the “You Don’t Own Me” video, released last week that revives Lesley Gore’s 1964 song.
If the ideological composition of the court shifts, abortion is the biggest flower in a bouquet of changes that would be ripe for the picking. There’s the future of campaign finance reform—whether to forge ahead with allowing more and more money into American politics, a la Citizens United. There’s the separation of church and state, gay marriage, and the scope of the death penalty and the rights of criminal defendants. But the court has deftly kept most of this off its docket so far this term. It’s entirely likely that the justices will hear a challenge to the Voting Rights Act before April is out, along with one to the Defense of Marriage Act. But putting off the decisions to hear these cases so far has helped to keep the court clear of the campaigns’ line of fire. The same is true of the 5-4 ruling last June preserving Obamacare. That decision led to widespread speculation about the political instincts of Chief Justice John Roberts when he unexpectedly cast the fifth vote to uphold the health care law. If Roberts is indeed playing the long game, nothing will help him win more than a Romney-Ryan victory and the new allies on the bench it would bring him.