Earlier this week, Politico ran a piece looking at the extent to which the Supreme Court would be an issue in this year’s presidential election; a piece that included speculation that Chief Justice Roberts’ role in the Obamacare decision may undercut Democrats’ ability to use the court as a wedge issue during the campaign.
Chief Justice Roberts may well have hoped that his decision to provide the fifth vote to uphold Obamacare would remove the Supreme Court as a campaign issue. But because of the Court’s intrusion into the political process to seize control over fundamental issues such as abortion, race, religion, and now gay rights, the Court’s membership will remain an issue for the elections.
I propose that control of the Supreme Court is ultimately more important to Democrats than Republicans. Democrats seek an agenda that often cannot survive the political process, and so they must turn to the courts to impose it from above the rough-and-tumble of electoral politics. Gay marriage comes to mind, as do various privacy rights recognized over the years.
Republicans, I think, generally want to put into place a Court that may be activist in the short term, but with the long term purpose of returning more issues to the political process. Control of the federal judiciary, therefore, will always be more important to Democrats than Republicans, in this election as well as those in the past.