The following contribution to our online symposium on the Supreme Court and the Election is by Nan Aron, President of the Alliance for Justice Action Campaign.

So far, the 2012 presidential election has been about jobs (or the lack thereof), tax rates and tax returns (or the lack thereof), Swiss bank accounts, birth control, insults to the British, and how small businesses are born.

But will it also be about the Supreme Court? What role will the Court – which just concluded its own ideological contests – play in the campaign?

If the question is whether the Supreme Court’s actions will influence the conduct, if not the outcome, of this election, one need only turn on a television set in a swing state and the answer will be starkly (and perhaps annoyingly) obvious. The cumulative effect of the Roberts Court’s decisions in Citizens United v. FEC and previous cases like the 1976 decision in Buckley v. Valeo is the unleashing of an almost unimaginable torrent of campaign cash.

With the election still three months away, over $200 million has already been spent by these entities, mostly on TV ads. The final total, when all is said and done, will be hundreds of millions more. (The spending by the official campaigns and the parties is another matter entirely, legally and politically.)  This election, and every electoral contest hence, is, for better or ill, the child of this Supreme Court and its views on money, political power, and the Constitution.

So, yes, the Court has already played a huge role in the 2012 election even before a single vote has been cast. But will the Court itself become an honest-to-goodness issue on the campaign trail, in the presidential debates, or in TV and radio ads?

Since U.S. Supreme Court Justices are not on the ballot, this question is really about what people expect the president to do in the event of an opening on the Court. It’s a political bank shot: voters pick the president, who then picks Justices, who then make decisions. In order for the Court to become a real campaign issue, and not just a symbolically ideological one, voters need to be aware of that chain of events. Traditionally, the right has gotten this, and we’re guessing the old rallying cry of “No more Souters!” will soon morph into “No more Robertses!”

Common sense tells us that the voters most likely to let a Supreme Court decision affect their vote are the ones who lost cases about which they have deep feelings, and are really upset about it. Let’s face it: few people repay presidents at the ballot box for making good Supreme Court picks, especially since most of the Justices who make the “right” decisions were appointed by presidents long gone. (Justices Scalia and Kennedy were chosen five presidents ago, so their fans have no one alive to reward.)

Theoretically, a big enough case could move the Court into the election conversation. Many commentators were convinced that the health care case was going to trigger widespread political fallout, but the largely unexpected way the case was decided, with Chief Justice Roberts writing for himself and the four moderate Justices, took a lot of the wind out that argument. We’ve seen no evidence that anyone will change their vote because of the Affordable Care Act decision, but it’s possible the case could have an effect on the intensity of existing motivations on the conservative side (hints about the future of the Commerce and Spending Clauses notwithstanding), where voters are already worked into a frenzy about the “Obamacare” issue.

Republican politicians may make the health care case an issue because they know historically that Supreme Court decisions are great political mobilizing and fundraising tools that tap into their base’s long-festering anger about the cases they’ve lost, such as Brown v. Board of Education, Roe v. Wade, and Engel v. Vitale. The Republican candidate and his surrogates are more likely to focus on the Court because their voters have been primed since the 1950s to receive that message.

The long-standing conservative focus on the Supreme Court, and on the lower federal courts generally, was born decades ago. Hot buttons were pushed and have remained pushed. Resentment motivates voters on issues of this sort, and to date the intensity of feeling has been largely on the right.

This year particularly, with the Tea Party ascendant, and with John Roberts’s apostasy still fresh, sworn-in-blood promises to appoint rock-solid conservatives to the Supreme Court will be required of the Republican candidate and he will undoubtedly oblige. The appointment by Governor Romney of Robert Bork as co-chair of his Justice Advisory Committee shows he is fully prepared to play to hard-core conservative sentiment.

On the Democratic side, the Court has not traditionally been a major issue in elections. Perhaps the better question to discuss here is not whether the Court will be an election issue in 2012, but rather whether it should be.

Our unequivocal answer is yes, it should.

Obviously, barring some kind of international calamity, jobs and economic issues are going to decide this election. But the intense spotlight of the presidential contest offers an opportunity for the Democratic candidate to close the intensity gap over Court-related issues between conservative and progressive voters.

Not only will the next president probably appoint at least one Justice who could, depending on circumstances, radically alter the Court’s direction for decades, but the Court is poised to tackle a wide array of principles many voters have held dear: same-sex marriage, affirmative action, voting rights, environmental regulations, reproductive rights, and the so-called “religious liberty” issue. In spite of, or because of, this past Term’s decisions, cases about state immigration laws will likely be back, and so will those related to the rights of labor unions. Business interests will continue to bring cases that will allow the Court, if it persists in its current pattern, to further limit access to the courts for everyday people, to prevent collective action against corporate malfeasance, to restrict the ability of government to regulate products and practices, to limit corporate liability, and to weaken workers’ power.

Even with the economic crisis foremost on the mind of every American, it’s hard to imagine a panoply of issues more salient to the future of the country than those. If the Court is going to shape those key policies in the next few years, and if the next president will shape the Court, it would be foolhardy for anyone who cares about those things to go into a voting booth and think that they are voting solely for a president. This election is about the Court whether the candidates acknowledge it or not.

For any voter or candidate who still thinks the Court isn’t or shouldn’t be an election issue, Justice Antonin Scalia’s recent interview with Chris Wallace on Fox News Sunday has come along at just the right time. When we’ve reached a point where a Supreme Court Justice floats the idea that the right to bear arms just might include “handheld rocket launchers,” it’s definitely time to make the Court a talking point in this campaign.

When asked about the possibility of retirement, the seventy-six-year-old Scalia himself made clear that the occupant of the White House matters when he stated that he would wait for a Republican president before leaving the Court. As he said quite plainly, “I would not like to be replaced by someone who immediately set about undoing everything that I’ve tried to do for 25 years, 26 years … I mean, I shouldn’t have to tell you that. Unless you think I’m a fool.”

Scalia’s clearly no fool. He knows perfectly well what’s at stake in this presidential election, and any voter or presidential candidate who doesn’t understand that as deeply as he does is playing with a ticking time bomb – which may or may not be a constitutionally approved device.

Posted in Election Symposium, Featured

Recommended Citation: Nan Aron, Online election symposium: Handheld rocket launchers and the intensity gap, SCOTUSblog (Aug. 8, 2012, 11:20 AM), http://www.scotusblog.com/2012/08/online-election-symposium-handheld-rocket-launchers-and-the-intensity-gap/