2016: Where Politics Meets the Supreme Court

First off, happy new year to all our faithful readers (reader?).

Like all election years, 2016 is gearing up to an exciting one. As someone who enjoys the occasional political debate, every four years I find the audience willing to entertain and engage me in such things grows significantly, and it’s a chance to focus on things that really matter. And some that don’t–that’s the nature of election years where we over-politicize everything.

One unfortunate victim of the over-political approach is the Supreme Court, which is becoming more and more of a campaign point. Admittedly the next President might have a chance to appoint a large number of new justices to the court for life tenure. Some are thus calling it the most important election year ever. No doubt the Supreme Court is an important branch of the U.S. And with a Congress that does not enact many laws or effect change with any speed, it is tempting to say the president’s influence in picking the court makes this an important election year. But before we get too far, a few reminders:

1) First and foremost, especially with the trend of picking younger and younger justices with a less-clear record (that can get prevent them from getting confirmed) it is very hard to predict exactly how a Justice is going to vote on the court. So the idea that President holds all that power is a little illusory. Picking a Justice does not automatically mean you get what you want, even though the above article missing that point entirely.
2) Secondly, compared to the days of the Warren and Burger courts, the current Court is hearing fewer and fewer cases by a significant degree. While there are mixed feelings about whether that should be the case (and perhaps with a “strong” majority the court would take on more cases to push its advantage) it definitely lessens its ability to have an impact.
3) The over-politicization of the court misses a reality that the majority of cases are still decided as strong majorities, even if we don’t hear about them and only focus on the “big” ones.

This approach to picking Supreme Court justices leads to candidates promising to pick Justices based on individual issues (think Clinton and her promise to find someone to overturn Citizen’s United) rather than on a body of work larger than a single view point. Think about how much that commitment might limit the universe of potential candidates. Further, the difficulty with predicting a future justice’s vote might end up making a candidate an unintentional liar.