Monday’s Mtg: The Supreme Court and the 2016 Election.

The Supreme Court was always going to be the big prize of the 2016 election. Justice Antonin Scalia’s death on February 13, 2016, just raised the already high stakes to an unequaled plateau because we now know the Court’s 20+ year-long conservative ideological majority hangs in the balance.

I originally scheduled this topic to discuss the string of 5-4 conservative decisions on major cases that everybody expected to come down the pike in April to June. These cases included ones on Obama’s climate regulations, the 1-person-1-vote redistricting standard, union rights, abortion and contraception access, affirmative action, and the death penalty. Oops. Now, those cases either will be reargued next term, remanded to lower courts, or let stand because SCOTUS is tied.

So, I think it might be fun to re-purpose this meeting to look more broadly at the relationship between the Supreme Court and elections – and public opinion. We kind of did this 2012 (Whose side is SCOTUS on?). But, that was more about how public opinion influences SCOTUS and how often the Court has defied majority public opinion to make unpopular rulings.

On Monday, I’d like us to begin by asking about the reverse relationship: How much does the public care about SCOTUS and how do high-profile Supreme Court issues influence voting? As the first link or two below explain, typically SCOTUS is not a very visible issue in our elections except for political activists, the most well-informed voters, and the economic interests intimately affected by Court decisions. But, given the historic moment, it might be different this time. Especially with presidential candidates running on issues that are before the Court but in limbo because of Scalia’s death, like Ted Cruz running on abortion and immigration and Bernie Sanders demanding that the next SCOTUS justice commit to overturn Citizens United.

I will give a short introduction to our meeting that focuses on the public’s view of the Supreme Court and whether/why that matters. Then, we can discuss if that is changing.

DISCUSSION QUESTIONS –

  1. Stakes: How high are the stakes in this election for the future of SCOTUS and American law and policy? Re:
    1. High-profile cases next term?
    2. Big areas of constitutional law, like civil rights, civil liberties, presidential power, natl security, voting rights and campaign finance, reproductive rights, labor unions, federalism, etc.?
    3. Obama’s achievements (many are reversible by SCOTUS)?
    4. Lower federal courts?
    5. Is a “constitutional revolution,” either progressive or conservative, at stake?
  2. History: Traditionally, how big an issue is SCOTUS in voters’ minds? Which voters care the most and why?
  3. 2016 Rhetoric: What are the candidates saying about SCOTUS stakes and who is the rhetoric aimed at (voters, activists, Media, donors)?
  4. 2016 Receptivity: Will it have any effect – how will we know? Will it raise expectations that have to be met?
  5. 2017 and beyond:
    1. What kinds of justices would Hillary/Bernie or Cruz/Trump/other nominate? Any chance of picking a moderate?
    2. Will GOP refuse any nominee, keeping a 4-4 Court?
    3. How would your answers to Q1/ a-e be different with a GOP or a Democratic Supreme Court?

SUGGESTED BACKGROUND READING –

Next Week: When is civil disobedience justified?

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One response

  1. It is interesting to speculate at what point Republicans might consider confirming a new nominee, assuming they don’t win the election.
    If the current deadlock continues, most likely, some decisions Republicans desperately want will result in 4-4 deadlock; thus affirming circuit or possibly state supreme court decisions.
    Most people don’t seem to understand that this might result in different “circuit law” in various parts of the country, avoiding which is probably the main reason the Supreme Court takes up cases in the first place. It could be an interesting legal situation–the law might depend on what part of the country you happen to live in.

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