Web Chat: The Supreme Court and the Presidential Race

Expert Russ Wheeler says that in this election—as in the past—the cases before the Supreme Court will be used by both political parties to see the upper hand in the election. On October 12, Wheeler took your questions in a live web chat, discussing how the parties use the court cases to rally their voters and attack their opponents.

12:29 Vivyan Tran: Hey everyone, let’s get started.

12:30 Russ Wheeler: The Supreme Court opened its 2011-2012 term on October 3, and commentators are using phrases such as “historic” and “most momentous in decades” to describe the menu of cases already on the docket and those the Court’s likely to add. Issues in the 50 or so cases the Court is already agreed to decide range from jail strip searches for defendants accused of minor crimes to the constitutionality of the FCC’s policy governing what constitutes indecency on broadcast television. The Court is likely to add challenges to the Affordable Care Act and perhaps Arizona’s tough immigration law.

12:30 Russ Wheeler: These and other cases will likely make this an important term for American law, but also for American politics, since they’ll likely be decided in the midst of next year’s presidential elections. It’s hard to think of another presidential election in which specific Court decisions had an impact as great as those this term may have. The one that comes quickest to mind is 1860, when Abraham Lincoln campaigned against the 1857 Dred Scott decision that declared that African Americans could not be citizens of the United States.

12:30 [Comment From Mark: ] Does the Supreme Court think about election year implications of cases it has agreed to decide or might decide this year?

12:30 Russ Wheeler: I’m sure the justices are aware that their decisions may have implications but I’m sure none of them say “let’s decide this case this year so we can influence the election.” They may worry that people will think that.

12:31 [Comment From jen: ] Do you foresee any more SCOTUS justice nominations in the near future, perhaps for the next president?

12:32 Russ Wheeler: I seriously doubt we’ll see any retirements before the election, although 4 of the justices are over 70 and that bears some consideration. That fact also suggests some of the current justices may leave during the next 4 years.

12:32 [Comment From Gary: ] Besides the cases involving the federal health care law and Arizona immigration law, what are some cases already on the docket that could become issues in the 2012 election?

12:36 Russ Wheeler: Take for example a case involving a 2002 law telling the State Department on official documents to identify Jerusalem as part of Israel. The Department refuses to do, saying it interferes with its diplomatic efforts in the Middle East because it does not recognize Jerusalem as a part of Israel. With the Jewish vote in play, a decision here might have an impact.

12:37 [Comment From Guest: ] When would SCOTUS announce it will take up the health mandate case?

12:37 Russ Wheeler: Not entirely clear, but a posting today on SCOTUS Blog says it might be as late as December, which would still provide time for argument and decision this term.

12:37 [Comment From Jason: ] Does the Court have much leeway in deciding what cases go on its docket?

12:38 Russ Wheeler: It has almost total discretion. But it considers whether a lower court declared a law unconstitutional, whether the courts of appeals disagree on the matter, and whether the question simply needs a national resolution. All those are present in the health care case.

12:39 [Comment From Jamie (DC): ] What does it take to have a law ruled as unconstitutional by the court and do you think this will happen to Obama’s health care law?

12:40 Russ Wheeler: In simplest terms, it’s if the law, in the Court’s opinion, is inconsistent with a provision of the Constitution. That’s obviously a very simple answer. In the health care case, the question is whether Congress exceeded its authority to regulate commerce among the states when it enacted the individual mandate to buy insurance.

12:41 [Comment From Wes: ] How much do you think President Obama affected the leanings of the court with the people he nominated for justice?

12:41 Russ Wheeler: Not too much, because his two appointees replaced justices generally considered as part of the “liberal bloc.” Of course, his appointees are young and will probably be on the Court for some time.

12:42 Vivyan Tran: If the health care law is overturned, what would that mean for President Obama and the Republican candidate?

12:44 Russ Wheeler: You can write the various scripts. If it’s overturned (probably 5-4), the Democrats will rail about an activist court in the tradition of the Citizens United decision opening the door for campaign spending. The Republicans will say “We told you so, and why did you waste a year getting the law enacted” and some Democrats will probably agree, at least silently. It will also motivate calls for electing Romney (or whomever the GOP nominates) or reelecting Obama to influence the shape of the Court to come.

12:44 [Comment From nancy: ] Do you have any comments on why it takes so long for justices to get confirmed? Do you think the confirmation process “works”?

12:46 Russ Wheeler: It sure is different from the days of confirmation a week or less after nomination. Several reasons: people realize the Court is important and in the middle of policy making; groups on the right and left are energized by the conflict over the nominations (and by the way, urge donors to contribute). Having the hearings televised has also contributed.

12:46 [Comment From Terry: ] Do you believe the Court will rule strictly on the constitutionality of the individual mandate or will they issue a broader ruling on the law in its entirety?

12:48 Russ Wheeler: Hard to say. In the case the administration has asked the Court to hear, the district judge said the mandate couldn’t be decided upon separately—that it was integral to the law and the whole law therefore was unconstitutional. The court of appeals disagreed. So we’ll see.

12:48 [Comment From Karen K: ] Are there any likely retirements coming from the court soon? If so, how will the winner of the election be able to impact the leanings of the court?

12:49 Russ Wheeler: Not before the election. As I said earlier, 4 of the justices are in their 70s—Ginsburg at 78 to Breyer at 73, with Scalia and Kennedy in between. Not to be morbid, but it may not be not entirely their choice when they leave. Depending on who, if anyone leaves, and who’s in the White House, it could make a big difference.

12:50 [Comment From Anton: ] Do you think that the administration challenging the legality of draconian immigration laws in Alabama portends any major role for immigration in this election?

12:51 Russ Wheeler: Immigration already has a role, as the debates have shown. The courts in the ninth circuit enjoined enforcement of the tough Arizona law, agreeing with the administrtion that federal authority preempted it. Arizona has asked the court to review the case. Most people think it will. If it doesn’t, it’s probably because there will be additional challenges to this type of legislation, as in Alabama, which the administration has taken to the court of appeals.

12:51 [Comment From Ben: ] Is the Court likely to start broadcasting proceedings? If they do, will it change the way the Court interacts?

12:52 Russ Wheeler: I think it’s inevitable, but not until all the justices are willing to let it happen. Some now are opposed. When it does happen, I doubt that it will have much impact at all, except to let the public see an institution that takes its work seriously.

12:52 [Comment From paul: ] Does the president have any influence over what cases the court decides?

12:53 Russ Wheeler: Not so much the president, but the Solicitor General, who is the nation’s chief lawyer before the court, can have an influence. The Court takes the SG recommendations with considerable respect.

12:53 [Comment From hank: ] Were you surprised by any decisions the court made this year?

12:54 Russ Wheeler: Not really. I thought it played out pretty well according to expectations. People were surprised by the Westboro Baptist church case—protesting at service members’ funerals—but given a Court with strong First Amendment leanings, it really wasn’t surprising.

12:54 [Comment From Abigail: ] Has the partisanship in Congress affected the way the justices interact?

12:55 Russ Wheeler: I doubt that very much. The Court, by all accounts, is today a pretty amiable place, despite the tough rhetoric in the opinions. The Court is probably relieved that it doesn’t suffer from that same kind of personal nastiness.

12:55 Vivyan Tran: How else can the court be a factor in the election?

12:57 Russ Wheeler: It’s not just the decisions the Court might make on signature Obama policies. There is also a lot from the Republicans about curbing what they call judicial activitism. Newt Gingrich is advocating subpeoning the justices and judges to explain their decisions, cutting off their funding, etc. Rick Perry has advocated term limits. These matters, especially if the court decides some of the social issue cases a certain way, will pervade the campaign at some level.