Scholarship highlight: The Court as a campaign issue

The following is a summary of Professor Ross’s recent article that appeared in the Journal of Supreme Court History.

Although the Supreme Court’s decisions have far-reaching political consequences and presidential elections profoundly affect the Court by determining who will appoint the Justices, the Court only sporadically has emerged as a significant issue in presidential campaigns.  During the nineteenth century and most of the twentieth century, the Court became an issue only at times when its decisions were particularly controversial.  During the past forty years, as voters have acquired more awareness of the political significance of Supreme Court appointments, the Court has become a persistent – but nearly always peripheral – election issue.

Judicial issues played a role in the election of 1800, when the controversy about the federal judiciary’s enforcement of the Alien and Sedition Acts may have helped to elect Thomas Jefferson to the presidency. In 1860, the Court’s notorious Dred Scott decision became an issue which may have helped elect Abraham Lincoln.

Judicial issues first became regularly intertwined with presidential politics during the period between the 1890s and 1937, when the Supreme Court, along with lower federal courts and state courts, carefully scrutinized the constitutionality of social and economic regulatory legislation that was designed to ameliorate some of the harsher effects of the Industrial Revolution.

The Court’s responses to economic regulation, together with the increase in injunctions to restrain the activities of labor unions, first became an issue during the tumultuous and pivotal contest between William McKinley and William Jennings Bryan in 1896 in the wake of the triad of 1895 Supreme Court decisions striking down the federal income tax, excluding manufacturing from the scope of the Sherman Antitrust Act, and upholding the conviction of labor leader Eugene V. Debs for violating a federal injunction during a strike. The Democratic platform assailed the income tax decisions and “government by injunction,” and Bryan criticized the decisions as he barnstormed through the nation. Although Bryan was careful to avoid any challenge to judicial review, Republicans alleged that Democrats threatened constitutional government by questioning the Court’s decisions.

By 1912, the surge of Progressivism brought criticism of the Court to a crescendo and ensured the prominence of judicial issues in the presidential campaign. Some Progressives advocated the abolition of life tenure for federal judges, election of federal judges, and the requirement of a super-majority in decisions striking down legislation, and several western states enacted laws to permit the recall of state judges. Not only conservatives were shocked by former President Theodore Roosevelt’s proposal to permit the recall of constitutional law decisions, which he announced during his bid for the Republican nomination. Roosevelt’s opponents effectively used the proposal in their efforts to portray Roosevelt as a dangerous radical, and Roosevelt soft-pedaled it during his third-party candidacy as the Progressive nominee. Taft practically made defense of judicial review the centerpiece of his bid for re-election, and the issue may have hurt Roosevelt even though he out-polled Taft in the general election.

The Court next became a major issue in 1924, when the Progressive Party candidate, Wisconsin Senator Robert M. LaFollette, frequently assailed its decisions and advocated a measure to permit Congress to re-enact by a two-thirds vote any law that the Court had nullified. After LaFollette gathered so much support that the election seemed likely to be thrown into the House of Representatives, Republicans seized upon LaFollette’s criticisms of the Court and judicial review as an ideal means of framing their theme that LaFollette was a dangerous radical who would foment political upheaval that would ruin the nation’s burgeoning prosperity. Although LaFollette placed well for a third-party candidate, garnering seventeen percent of the vote, there is evidence that Republican attacks on LaFollette’s criticisms of the Court cut deeply into LaFollette’s support.

Political criticism of Supreme Court decisions receded after the Judicial Revolution of 1937 but flared up again, this time on the “conservative” end of the political spectrum, during the Warren Court era of the 1950s and 1960s.  The Court’s decisions on desegregation, criminal procedure, school prayer, domestic security issues, and reapportionment of voting districts helped to ensure that the Court became a major issue in 1964.  Borrowing a phrase used by progressives during the early twentieth century, Alabama Governor George C. Wallace assailed “judicial oligarchy” in his quest for the Democratic presidential nomination.  The Republican nominee, Barry Goldwater, later spoke more frequently and more harshly about the Court than any major party’s presidential candidate in history.  Goldwater linked his attacks on the Court with the broader themes of his campaign, particularly threats to states’ rights and so-called “moral decay.”  His particularly astringent criticisms of the school prayer and reapportionment decisions were echoed by the Republican Party’s platform, which called for constitutional amendments to permit states to use factors other than population in apportioning membership in one house of state legislators and to permit non-coerced prayer in public schools.  Although Goldwater avoided criticizing the Court’s desegregation decisions, some commentators believed that southern audiences had these decisions in mind when they cheered Goldwater’s attacks on the Court for interjecting itself into social and political issues.

Goldwater’s criticisms of the Court, like those of LaFollette in 1924, may have played into the hands of the Democrats, who based much of their strategy on attempts to portray the G.O.P. nominee as a dangerous radical.  Moreover, Goldwater – like LaFollette in 1924 – found that audiences were impatient with detailed analysis of judicial decisions.  Unlike LaFollette and many of his fellow Republicans, Goldwater did not advocate any curtailment of the Court’s institutional powers.  Instead, Goldwater became one of the first presidential candidates to emphasize the connection between presidential elections and federal court appointments.

Like LaFollette in 1924 and other presidential candidates who have castigated decisions of the Court, Goldwater refrained from personal criticism of the Justices.  At a time when many conservatives were calling for the impeachment of Chief Justice Earl Warren and even denouncing him as a traitor, Goldwater publicly described Warren as “a very loyal man” and not “un-American” when one of his supporters at a campaign rally tried to goad him into a personal attack on the Chief Justice.

Goldwater’s strident criticisms of the Court’s decisions probably had little impact on the outcome of the election, which Goldwater lost in a major landslide, except to the extent that they may have reinforced Democratic allegations that Goldwater was an extremist.  Although Goldwater’s defeat ensured the demise of growing efforts to use the constitutional amendment process to overturn or modify various Supreme Court decisions, the Court remained controversial.  During the next four years, the Court’s decisions, particularly Miranda v. Arizona and other decisions protecting the rights of criminal defendants, helped to ensure that the Court would become a major election issue in 1968.

During the 1968 campaign, Richard Nixon criticized the Court more than any successful presidential candidate in history.  Unlike Goldwater in 1964, Nixon generally refrained from discussions of particular decisions, confining himself to more general criticism of judicial activism, especially in cases involving criminal procedure. Campaigning at a time when rising crime was one of the electorate’s major concerns, Nixon’s criticisms of the Court fit nicely into his broader efforts to assure voters that he would restore “law and order.” Refraining from proposing institutional reforms or constitutional amendments to overturn specific decisions, Nixon focused on judicial appointments as a remedy, promising judges who would adhere to a so-called strict construction of the Constitution. Meanwhile, Wallace made attacks on judicial issue a prominent feature of his third-party campaign.

Judicial issues receded in importance during the 1972 and 1976 elections. Since 1980, the impact of judicial appointments on abortion rights has been an issue in every presidential campaign, particularly in 2000. Although some candidates also have emphasized the impact of judicial appointments on other issues, including voting rights and affirmative action, judicial issues have never come to the fore, even though the advanced age of Justices has often made likely the prospect of judicial appointments during the next four years.

Presidential candidates generally find that the Court is difficult to transform into an election issue even though most voters appear to understand that presidents help to shape constitutional law by nominating Justices and other federal judges. Criticism of the Court is politically perilous, however, because the Court is so widely perceived as the ultimate defender of personal and economic liberties and the rule of law. Transformation of the Court into a political issue also is difficult because anything other than the most superficial criticism requires discussion of the subtleties of judicial decisions, which may bore or confuse many voters and are at odds with campaigns that are increasingly focused on simple themes and sound bites. During the past forty years, such criticism also has been problematic because the Court’s decisions have been so diffuse that the Court has not been closely identified with the views of either political party or either end of the political spectrum.

 William G. Ross is the Lucille Stewart Beeson Professor at Samford University’s Cumberland School of Law. He has published widely on American constitutional history and the judicial appointments process.