For all the uncertainty surrounding the 2016 campaign, this much is already clear: The Supreme Court will be at the center of that election in a way rarely seen in our nation’s history. Between June 2015 and June 2016, the court is likely to issue rulings on marriage equality, health care, abortion, and voting rights, all of which will be chewed over endlessly by both parties’ presidential candidates. Meanwhile, with four justices in or approaching their 80s, the court’s future will itself be up for grabs. It’s no exaggeration to say that the Supreme Court will be 2016’s most consequential issue, and that the party that makes the best case for what the court should be will be on its way to victory.
If you’d like a preview of what the court will be batting around for the next two years, look at last week’s headlines. On Friday, the Supreme Court announced that it would decide the latest challenge brought by conservative legal activists to the Affordable Care Act. This announcement—surprising because there was no split of authority in the lower courts—means the court will once again decide the fate of the ACA. A ruling for the challengers would not only threaten health coverage for 4.6 million Americans currently receiving federal subsidies to purchase insurance, but would also disrupt the nationwide insurance market and, therefore, threaten the overall viability of the ACA.
And on Thursday, it was a lower court—a divided panel of the 6th Circuit Court of Appeals—that grabbed everyone’s attention, upholding laws in four states that prohibit same-sex marriage. This ruling came after a long series of decisions from courts around the country striking down these discriminatory laws. Now, with a clear circuit split, the court will have to step in to resolve the issue, probably this term. Whichever way the court rules, it will thrill the base of one political party and infuriate the other.
But wait, there’s more.
In recent years, conservative-controlled states have passed a series of harsh laws that both limit reproductive choice and make it more difficult to vote. Now, following a series of legal challenges, both abortion and voting rights are also on their way back to the Supreme Court—if not this term, then certainly in the one following.
The leading abortion case comes out of Texas, where the staunchly conservative 5th Circuit Court of Appeals recently upheld a state law that requires abortion clinics to upgrade their facilities and ensure that their doctors have admitting privileges at local hospitals. Reproductive rights groups argue that these requirements are a mere pretext designed to shut down clinics. Last month, the Supreme Court—over the objections of Justices Alito, Scalia, and Thomas—blocked implementation of the 5th Circuit’s ruling. If the court ultimately decides the merits of this issue, it will be the Roberts court’s first major opinion addressing what constitutes an undue burden on a woman’s right to reproductive choice—an important signal of whether Roe v. Wade itself is imperiled in the Roberts court.
Finally, over the last year, the lower courts have been wrestling with challenges to the recent wave of Republican-led restrictions on voting rights, including voter ID laws and restrictions on early voting. This fall, the court stayed the results of many of these lower-court rulings, maintaining the status quo and taking the pressure off of deciding these challenges this term. Instead, it likely pushed off a resolution of these matters until early 2016, just in time for it to deal with the new set of laws that’s scheduled to kick in for the 2016 election. That will place the court right in the middle of a contentious political debate just as the presidential race heats up.
These blockbuster cases should amply demonstrate to the voting public the high court’s significance. Meanwhile, the apparent decisions of Justices Ruth Bader Ginsburg and Stephen Breyer to stay on through the 2016 election highlight just how much power the next president will have to shape the court’s future. With Justice Ginsburg turning 83 in 2016 and Justice Breyer turning 78, a Republican president could solidify conservative control over the court for decades to come and thereby threaten some of President Obama’s landmark achievements, including the ACA. Similarly, with Justices Scalia and Kennedy both turning 80 in 2016, a Democratic president could have the opportunity to end the Roberts court’s conservative push.
It’s been nearly eight decades since the third branch set the agenda for an election while its own future hung in the balance. In 1936, Franklin Roosevelt ran for re-election in the wake of a series of rulings by an aging, conservative-dominated court that had struck down critical elements of Roosevelt’s New Deal. The stakes then, as now, were readily apparent: If Roosevelt lost, his New Deal would be dead. If he won, the New Deal would survive and Roosevelt would have the opportunity to deal a deathblow to the Lochner-era court, which had thwarted health, safety, and labor laws for the preceding 40 years. Roosevelt won, and over the next eight years he would appoint each of the court’s nine justices, including legal giants like Hugo Black and Robert Jackson. Little wonder that they call the Supreme Court of that era the “Roosevelt court.”
The difference between then and now is that, beginning with his 1932 campaign, Roosevelt ran aggressively against the Lochner court, arguing that it did the bidding of large corporations and the Republican Party. No Democratic presidential nominee since Roosevelt has been nearly as aggressive in challenging the court, while recent GOP nominees have been more than happy to espouse the virtues of constitutional conservatives on the bench. The conventional wisdom seems to be that talking about the judiciary in general and the Supreme Court in particular is, at best, a distraction for progressive candidates, and, at worst, a losing fight.
That conventional wisdom is suspect. Indeed, progressives already have all of the resources they need to launch an effective counteroffensive. First, rather than shying away from the Constitution, progressives should fully embrace our nation’s constitutional story—a story that begins with the founders’ decision to create a national government with the power to solve national problems, and continues with the efforts of subsequent generations to end slavery, promote equality, and expand the right to vote. This story—supported by powerful scholarship from leading law professors like Akhil Amar and Jack Balkin—shatters the Tea Party myth of a strictly limited federal government and offers an affirmative, progressive vision of our Constitution.
Second, progressives should attack the conservative Roberts court where it’s most vulnerable. Polling shows that rulings by the court’s conservative majority that favor the interests of corporations over individual Americans—Citizens United is the poster child here—are unpopular across the political spectrum, giving modern progressives an opening to make a case against the Roberts court not dissimilar to the one Roosevelt made against the Lochner-era court. Sen. Elizabeth Warren has been making just this argument at events around the country, warning of the “corporate capture” of the federal judiciary.
At a recent event with Warren in Massachusetts, Hillary Clinton commented that she “love[s] watching Elizabeth give it to those who deserve to get it.” If she wants the presidency, Clinton is going to have to stop watching, and start making the case for a change of direction on the nation’s highest court.