Texas Sen. Ted Cruz, a former Supreme Court clerk, has called for abolishing the justices' lifetime tenure and making them run for re-election “so long as justices on the court insist on behaving like politicians.” Florida Sen. Marco Rubio recently said of Supreme Court decisions legalizing abortion and gay marriage that when civil and religious laws “come in conflict, God’s rules always win.” Former Pennsylvania Sen. Rick Santorum has said, “The stakes are too high and the issue too important to simply cede the will of the people to five unaccountable justices.” Former Arkansas Gov. Mike Huckabee has long complained of politicians who would “allow black-robed and unelected judges the power to make law as well as enforce it.”
For Republicans running for president, the Supreme Court itself is essentially on the ballot. Democrats? Not so much.
Both Hillary Clinton and Bernie Sanders have weighed in against the Supreme Court’s 2010 decision in Citizens United, which opened the door to a flood of independent expenditures in campaigns. Both candidates support a constitutional amendment to overturn the decision. Clinton has noted a few times that the next president could appoint as many as three or four justices to the court.
According to a recent report from People for the American Way, 165 Supreme Court decisions have been decided 5-4 since Chief Justice John Roberts and Justice Samuel Alito joined the court a decade ago. But even as the more conservative Roberts court marks its 10th year, Democrats have shown little of the intensity or emphasis shown by the Republicans. That isn’t lost on the liberal activists who are focused on the judiciary and outraged by many of the Supreme Court’s recent decisions.
"It’s my opinion that it’s the most important issue in this election."'
“It’s my opinion that it’s the most important issue in this election,” said Caroline Fredrickson, president of the left-leaning American Constitution Society. “It’s too important to the direction of the country to let the Republicans dominate the conversation.”
“The four most important issues in this election are named Ginsburg, Kennedy, Scalia and Breyer,” said Marge Baker, executive vice president at the liberal advocacy group People for the American Way, referring to the justices who will be over 80 years old during the next president’s first term. “My sense is that you can’t start talking too soon to voters about this issue.”
The court, always powerful, is poised to become even more so, with the federal government largely at a gridlocked standstill, the president resorting to executive orders and states becoming experiments in red and blue policymaking. Its ideological balance is also constantly teetering.
Inveighing against the court is a long Republican tradition. “Ever since the 1950s, with Brown v. Board of Education, the right-wing base has felt very strongly about the court,” said Nan Aron, founder and president of the progressive Alliance for Justice. “With Roe v. Wade in 1973, that group got angrier and larger. Every four years, you always hear Republican candidates talk about the court. It’s a way to nurture and please that part of the party.”
Indeed, an NBC/Wall Street Journal poll conducted in July, right after the Supreme Court upheld the Affordable Care Act and struck down state same-sex marriage bans, 97% of Republican voters said they thought the Supreme Court was too liberal. Only 53% of Democrats said they thought the court was too conservative.
That may explain why candidates like Cruz and even former Florida Gov. Jeb Bush are condemning Chief Justice Roberts, appointed by President George W. Bush, as not conservative enough. (That’s not how Aron sees it. “Possibly he’s the most conservative chief justice we’ve ever had,” she said.)
The People for the American Way report argued that many of the Roberts court's 5-4 decisions have "bent the law and defied logic, seriously harmed the rights of ordinary Americans, promoted the interests of powerful corporations, and damaged our democracy.” Liberals are furious at earlier decisions like Citizens United and a series of other cases weakening limits on the influence of money in politics, Shelby County v. Holder, which overturned an important provision of the Voting Rights Act, and Burwell v. Hobby Lobby, which gave corporations religious rights of objection over contraceptive coverage, among others.
But for Democrats, the risk of the most recent Supreme Court term, with its relative wins, is to lull its base into complacency about the court as not that conservative after all.
“Even the wins are never really wins,” Baker countered. “And if it’s a win, it’s by the skin of their teeth.” That is to say, it involves a single justice, either Justice Anthony Kennedy or Roberts, crossing the aisle.
The next term may well make it easier for Democrats to point to the court with more urgency. “You’ve got the docket,” said Aron. “That’s a wakeup call. … You don’t have to manufacture the fear on our side, or the stakes that are there.”
The court has agreed to hear several cases this year engineered by conservative legal activists emboldened by the court’s willingness to turn right on some issues. One case, Friedrichs v. California Teachers Association, threatens to overturn the court’s precedent and severely undermine public sector unions. Another, Fisher v. University of Texas at Austin, may finally kill affirmative action in public institutions. A third, Zubik v. Burwell, seeks to take the religious exemptions to contraceptive coverage laid out in Hobby Lobby one step further.
Yet another case, Whole Woman’s Health v. Cole, brought by abortion clinics in Texas challenging restrictions on clinics and doctors there, could be the most consequential abortion rights decision in over a quarter century. On top of all that, the court could still add a challenge to President Barack Obama’s immigration policies to its docket.
Already, said Fredrickson, progressive outrage at Citizens United has seemed to change the usual pattern of Democrats downplaying the court compared to their Republican counterparts. “I think it has been a process of greater understanding by progressives, by Democratic voters," she says, "that the court is part of the reason why they should participate in politics."