Recent Decisions Won’t Keep Supreme Court Out of Election Year Politics

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.

  1. KC Mulville

    Another wrinkle in the “consent of the governed” …

    Why does anyone have a right to compel you to do something? In America, there’s really only one answer: because you agreed to it. Laws are just agreements.

    What if there are disputes about what was agreed to? Well, we could have Congress re-convene and vote again; creating new agreements to cover every individual case. But that would be impractical to the point of impossibility. So, we trust courts to “interpret” laws, which really means (in practical terms) that courts extend the agreements to resolve each specific case. To do that, of course, courts have to define what’s being extended.

    Funny. The definition of what was agreed to … doesn’t always match … what each party to the agreement thinks they bargained for. The legislators create the agreement, but the courts define it. The first stage requires compromise and popular support. The second stage doesn’t.

    That’s what makes the second stage irresistible to someone more committed to a policy than respecting agreements. If you’d rather re-define agreements than compromise, it shows how committed you are to your policies over majority rule.

  2. Howellis

    I agree with everything except the last sentence.  Republicans need control of the judiciary so that their political agenda and constitutional principles will not be subverted.  Perhaps it’s a semantic difference, but Republican control is necessary in order to limit the arrogation of power from the other branches and the constitution itself to the liberal judiciary.

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