The Court and the 2016 Election—Great Expectations

In the lead-up to virtually every presidential election over the past few decades, legal commentators and journalists have predicted that the future of the Supreme Court would feature prominently as a campaign issue. But these predictions have been consistently wrong—or at least considerably inflated. While the Court has featured as an issue on the campaign trail in every election since the 1960s, it has never been, with only rare exceptions, a prominent campaign issue.

The 2016 election was going to be different. Surely this time the Supreme Court would be one of the leading issues on the campaign trail. Justice Scalia’s death in February 2016 left a Court that was evenly divided between four ideologically conservative Republican-appointed Justices and four liberal Democratic-appointed Justices. Rarely has the direction of the Court been so clearly in the balance. When Republican senators refused to hold hearings on President Obama’s nominee to the Court, Judge Merrick Garland, Democrats predicted that their opponents would pay a price at the polls. Indeed, the justification Republicans gave for why they refused to hold hearings was that they believed the voters should have a chance to express their views on the direction of the Supreme Court. Now the voters had their opportunity.

But yet again, the candidates didn’t seem particularly interested in pressing the Court as one of their major campaign issues. Neither the Republican stonewall of President Obama’s nominee nor the issue of the next Justice of the Supreme Court was a major issue for the candidates on the campaign trail. Republican candidate Donald Trump issued his list of potential Supreme Court nominees, a two-stage process that brought some attention to the issue. But beyond this, he did little more than offer an obligatory, perfunctory reference to the Court in campaign speeches, supplemented by occasional, hyperbolic forays into the importance of gun rights. Hillary Clinton spoke less about the Court than did Trump, and she made little effort to make the Garland blockade a campaign issue. In two of their debates, the candidates received questions on the Court. The first time, Trump quickly changed the subject. The second time, Clinton and Trump engaged in a sharp but rather predictable exchange about abortion and guns—an exchange that was largely forgotten in post-debate news accounts. In the end, 2016 largely followed the patterns of past elections.

And yet the Court really mattered to the American people in this election. The Scalia vacancy attracted a good deal of public attention, and voters claimed that who was appointed to the Supreme Court was important to them. According to exit polls, more than any election in recent memory, the voters placed the Supreme Court at or near the top of their list of issues that affected their selection. This only sharpens the puzzle: in an election where extraordinary circumstances seemed perfectly aligned to force the Court to the front of public debate and where the people actually were thinking about the Court more than in the past, the candidates nonetheless seemed uninterested or unwilling to make the case for the Court as a central issue in the election. What happened?

In my next post in this series on the Court and the 2016 election, I’ll discuss the factors that help explain the presidential candidates’ surprising lack of attention to the Court.

This post was written by ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt. It’s the second of a multi-part ISCOTUS series on the Supreme Court and the 2016 presidential election. The first post can be found here.

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