WASHINGTON – The Supreme Court this week punted on whether to hear a major challenge to part of the Voting Rights Act. The justices nondecision decision is perfectly in keeping with the low profile they have managed to keep in the 2012 election. How have judges escaped the role of lightning rod?
By my count, the court came up exactly once in the debates, when Martha Raddatz asked Vice President Biden and Rep. Paul Ryan about their views on abortion.
The court is a bevy of septuagenarians, and the chances are that the next president will get to replace one or more of them. The age count: In March, Ruth Bader Ginsburg will turn 80 and Antonin Scalia will turn 77. Anthony Kennedy is 76. Stephen Breyer is 74. If President Obama gets to replace Scalia or Kennedy, the balance of power on the court will tip, and the same is true if Mitt Romney gets to replace Ginsburg or Breyer.
In all likelihood, an Obama nominee would be a relative moderate. A Romney nominee, on the other hand, would be a hard-core conservative. The court is far too important to the Republican base for its activists to let this chance slip through their fingers. The Romney campaigns website says, As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito. Kennedy doesnt make the list. Never mind his votes producing a conservative majority in Bush v. Gore, Citizens United, upholding the federal ban on so-called partial-birth abortion, and plenty of other cases. He is unloved by the right for his perfidy in reaffirming the core of Roe v. Wade 20 years ago.
Given how easy it is to see that the Supreme Court is in play, why arent Romney and Obama talking about it? The obvious answer is that theyve each concluded its not to their political advantage. For years, conservatives have been better at motivating voters by talking about the Supreme Court. Trying to overturn Roe v. Wade is just more exciting than maintaining the status quo. So liberal and moderates have tended to be more content with the existing balance and less driven to treat the court as a priority for voting. For the president, stressing his future judicial picks must either turn off swing voters or leave them cold.
For Romney, the trick is to reassure his base that he means what he says about picking a justice in the unswervingly conservative mold without doing so loudly enough to scare the mushy middle. Along with this website statement about the current justices he sees as models, Romney signaled to his base with his selection of Robert Bork as a legal adviser. If youre a member of the Federalist Society, thats all the reassurance you need, since Bork still stands for a full-on assault on liberal-leaning constitutional interpretation. Its also a perfect signal because no one other than Federalist Society types is paying attention to it. On abortion, Romney has been careful to distance himself from the extreme of eliminating the rape exception, which polls badly. And maybe thats all he has to do, even though his party has embraced exactly this extreme in its own platform and at least a dozen of its own candidates for Senate endorse this view.
Most memorably, of course, weve heard about outlawing the right to abortion for rape victims from Missouri Republican Senate candidate Todd Akin and Indiana Senate candidate Richard Mourdock. And Obama does talk about womens health care on the stump. He just doesnt connect the dots to the Supreme Court.
If the ideological composition of the court shifts, abortion is the biggest flower in a bouquet of changes that would be ripe for the picking. Theres the future of campaign finance reform – whether to forge ahead with allowing more and more money into American politics, a la Citizens United.
Theres the separation of church and state, gay marriage, and the scope of the death penalty and the rights of criminal defendants. But the court has deftly kept most of this off its docket so far this term.
Its entirely likely that the justices will hear a challenge to the Voting Rights Act before April is out, along with one to the Defense of Marriage Act. But putting off the decisions to hear these cases so far has helped to keep the court clear of the campaigns line of fire. The same is true of the 5-4 ruling last June preserving Obamacare. That decision led to widespread speculation about the political instincts of Chief Justice John Roberts when he unexpectedly cast the fifth vote to uphold the health care law. If Roberts is indeed playing the long game, nothing will help him win more than a Romney-Ryan victory and the new allies on the bench it would bring him.