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October 21st, 2017

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Why nobody's talking about the Supreme Court

Noah Feldman

By Noah Feldman Bloomberg View

Published Sept. 29, 2016

Why nobody's talking about the Supreme Court

The U.S. Supreme Court didn't come up Monday in the first presidential debate, and so far, it hasn't been an important campaign issue. Given the unprecedented vacancy during an election season, that seems weird. But there is an explanation: The election's consequences for the court are asymmetrical for the two political parties.

If the Democrat, Hillary Clinton, is elected, it will change the court's balance, either through the confirmation of President Barack Obama's nominee, Judge Merrick Garland, in the lame-duck session or with the appointment of Garland or another liberal after she takes office. If the Republican, Donald Trump, is elected, all he can do is replace the late Justice Antonin Scalia with another conservative. That won't change the court's political balance. For that to happen, Trump would need Justice Ruth Bader Ginsburg or Justice Stephen Breyer to be unable to serve, which won't happen voluntarily for either in the first four years of a Trump presidency.

The result of this asymmetry is that neither candidate has much reason to put the Supreme Court front and center. Clinton can try to appeal to her base by promising to reshape the Supreme Court, which is an inspiring vision for some liberals, to be sure. But it isn't good politics for her to trumpet a liberal transformation of the court when she's trying to win over the median voter, who may well be skeptical of more judicial activism.

What's more, Clinton lacks a signature constitutional issue that would make liberals excited about a progressive majority. That's because much of the liberal constitutional agenda has been achieved in the last two years, courtesy of Justice Anthony Kennedy.

He wrote the gay-marriage decision in 2015. In 2016, he delivered an opinion protecting affirmative action in higher education. He also provided the deciding vote in the Texas abortion case, safeguarding the abortion right for another generation.

With these decisions, Kennedy effectively took away the sense of constitutional fear and desperation that might otherwise be haunting liberals alongside the possibility of a Trump presidency.


The most salient constitutional issue now percolating through the lower courts and energizing many progressives is transgender rights. But it will take time for public opinion to shift in favor of greater protection of transgender people, just as it did for support to build in favor of gay marriage. Clinton knows she won't gain politically in this election by making transgender rights into a major mission for her future judicial appointees. In fact, raising the issue might be a gift for Trump.

For Clinton, this all adds up to soft-pedaling the Supreme Court now and for the rest of the campaign.

For Trump, the calculus is a little different. He can't credibly promise to be a change agent when it comes to Supreme Court appointments. All he can do is say he will hold the line by appointing a conservative -- and indeed he has by releasing the names of 21 possible nominees.

That might have been enough to win over Texas Sen. Ted Cruz, if you take Cruz's word for his flip-flop on endorsing Trump. But Trump doesn't really like to depict himself as a movement conservative trying to preserve the status quo. His message is all about how things are broken. Even if he chose to say that the Supreme Court got it wrong on gay marriage, abortion rights and affirmative action, he can't say that he would be able to appoint justices who would change those results.

Furthermore, diehard conservatives who care about the Supreme Court are sophisticated enough to understand that they've lost on the big-ticket issues that have mattered most to them over the last 20 years. They know the court won't immediately reverse itself. Activist legal conservatives are focused mostly on preserving religious liberty in the aftermath of the gay-marriage decision, a position that is essentially defensive and operates on the (correct) background assumption that the culture war has already been lost.

The upshot is that for Trump, making the Supreme Court an election issue doesn't hold much appeal as a way to energize the right or to capture new voters from the center. He can certainly criticize the courts when it's convenient, or dismiss their holdings as "anti-police" the way he did during the debate.

So don't expect much more on the Supreme Court during this election season. When the dust has settled, however, the Supreme Court will return to the front pages very quickly indeed, and the question of who will succeed Scalia will be one of the most pressing issues facing the new president, whoever it is.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."

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