Same as it ever was: The Supreme Court and the coming election

The following contribution to our online symposium on the Supreme Court and the Election is by Neil Kinkopf, a professor at the Georgia State University College of Law.

In 1992, just one year out of law school and a few days off a judicial clerkship, I went to Little Rock to work on the domestic policy staff of the Clinton/Gore campaign.  At one of the first of the daily war room meetings I attended, a call went out for a volunteer to compile important Supreme Court decisions that had been decided by a five-to-four margin – the idea being that the campaign could use the list to make the case that it would be vital to have our own appointees sitting on the court (or, conversely, that it would be catastrophic to allow the Republicans this opportunity).  My hand shot up.  Being an eagerly enthusiastic young lawyer, this was precisely the sort of plum assignment I had dreamed of securing when I ventured to Little Rock.  I was absolutely thrilled when the political pooh-bahs who ran the war room picked me.  I noticed something odd, however.  Mine had been the only hand in the air, even though there were several other relatively young lawyers in the room.  I did not trouble too much over this at the time:  I was new and so had time to take on this project; the others must have been too busy to add even a project so plummy to their heaping plates.

I headed off to the then-new law library at the University of Arkansas at Little Rock (a beautiful facility staffed by kindly and helpful librarians).  I spent several days researching as thoroughly and extensively as I could think to do and finally produced my list of cases and talking points.  The list was – to my mind – pretty good.  The highlights included affirmative action (Metro Broadcasting v. FCC[A1] ), gay rights (Bowers v. Hardwick), free speech (Texas v. Johnson), and a host of federalism decisions (Pennsylvania v. Union Gas, Atascadero, etc.).  Unfortunately, for the campaign’s rhetorical purposes, the list did not include Roe v. Wade.  The Supreme Court had just the month before reaffirmed that precedent by a six-to-three margin in Planned Parenthood of Southeastern Pa. v. Casey, thus depriving the campaign – and, more importantly, my research project – of its marquee talking point.

Even without Roe, though, we would be able to argue that the stakes in the election were historic indeed.  Hanging in the balance was the continuing validity of affirmative action and of meaningful protection for fundamental freedoms such as speech.  Were the Republicans to win, “states’ rights” would triumph over civil rights, environmental protection, and other crucial national interests.  If we were to prevail, the Court might usher in real protections against official animosity and discrimination based on sexual orientation.  It was with a mixed sense of excitement and accomplishment that I submitted my project.

My work was received with polite gratitude and filed away.  It was never used as the basis for a speech or for a position paper or for talking points to be uttered by surrogates or for any campaign purpose at all.  As far as I know, it sits moldering away in some box at the Clinton Presidential Library.  The disposition of the project was not – and here I do not believe I am being defensive – a reflection on the quality of my research or writing.  Rather, it was the project’s inevitable fate.  The other lawyers in the war room when I volunteered for the project knew what I was too naïve to realize:  the campaign had no intention of making the Supreme Court a major or even a minor issue in the election.  In hindsight, this seems all too obvious.  Bill Clinton sought to appeal to moderate and independent voters.  More significantly, Bill Clinton was a New Democrat who sought to re-position the Democratic Party as centrist.  He therefore had no interest in raising issues such as affirmative action, gay rights, or flag burning.

For me, the topic of this symposium – what role or effect will the Supreme Court have on the election? – reduces to whether this election is any different than the 1992 election.  In the main I would answer “no.”  When I naively raised my hand twenty years ago, I was standing beneath the famous war room whiteboard bearing the slogan “it’s the economy, stupid.”   With apologies to the Berenstain Bears, this election will be just like 1992, only more so.  All of the smart politicos – the ones who know when to raise their hands and when to keep their heads down – say this election will be dominated by the economy unless something truly historic happens, such as a terrorist attack.  We will not be seeing anything truly historic from the Supreme Court before November.  The period between now and then is a sleepy one for the Court from the perspective of the general public, although I am conscious that readers of this blog will follow the cert. grants and start of Term events with rapt attention.  The Court had its chance to enter the campaign, of course, with the health care decision.  Chief Justice Roberts deftly (from a political perspective at least) steered the Court away from those shoals, writing an opinion on the Commerce Clause that thrills many conservatives without rousing the general public by actually striking down the law.

There is a bit part available to the Court in this election that was not open back in 1992.  The Internet has made niche marketing possible in ways that were unimaginable to politicians back in 1992.  Well, politicians not named Al Gore, anyway.  There are and always have been Court-related issues that appeal to small cohorts of people.  Before the Internet, it would have been the mark of a tremendously undisciplined candidate to attempt to speak to all of these disparate groups.  Now, however, campaigns can reach out to those people without stepping on their major messages and themes.  The Obama campaign was extremely deft at this in 2008, and Republican political operatives know the trade as well.

For the Obama campaign, there are a few issues that will resonate within small bandwidths.  First, there is real opposition to the Supreme Court’s decision in Citizens United.  Although the decision was issued a few years ago, Stephen Colbert has kept it in the public eye with his satirical forays into establishing a Super-PAC, as has a steady drumbeat of stories on the expanding role of big money in the campaign.  Second, the campaign is likely to raise the specter of Roe v. Wade being overruled.  Given the composition of the Court, this is a more realistic prospect than it was in 1992.  It is not irrational to imagine four present Justices voting to overrule Roe.  If Justice Kennedy’s commitment to his position in Casey were to waver or if he were to retire and be replaced by a Romney appointee, it is easy to imagine Roe being overturned.  I doubt whether this appeal will play outside the President’s hardcore base, however.  Chief Justice Roberts’s opinion in the health care case has cast the Court under his stewardship as an institution that is cautious and temperate.  As such, I doubt that many will be inclined to fear such a dramatic step as the overruling of Roe.

There are also a few issues that Governor Romney’s campaign is apt to raise.  First, I am sure the campaign will profess its opposition to “judicial activism.”  This has become a standard bromide on the right, and the Republican base will require that some tribute be paid.  Outside the core of the Republican base, however, it is hard to see such appeals having any purchase.  After all, conservatives dominate the judiciary and constitute a majority on the Supreme Court.

The rise of the Tea Party as a force in Republican politics will necessitate some statement of allegiance to the idea that the Constitution requires small and decentralized government.  The judicial corollary is that the Supreme Court should enforce meaningful limits on federal power because this comports with (a highly fictional version of) the original intent.  But this seems like an awfully tough case to make after the health care decision.  After all, it was not “Flipper” – Justice Kennedy – who changed sides.  Rather, it was the darling of the Federalist Society, Chief Justice Roberts.  Past Republican candidates could and did promise “no more Souters,” but would it be credible to promise “no more Robertses”?  Nevertheless, I fully expect Governor Romney’s campaign to rail against the activist decision in the health care case if only as a signal of solidarity to the tri-cornered hat crowd.

None of this is likely to matter very much to the outcome of this election.  If the Supreme Court is going to play any considerable role in the election’s outcome, it will do so the old-fashioned way:  by actually choosing the next President, see Bush v. Gore.