Many, if not most voters are extremely concerned about how the choice of President will impact the appointment of Supreme Court justices and, thereby, a host of social issues, including abortion rights, gay rights, gun rights, racial profiling by police, affirmative action, the death penalty, privacy rights, Obamacare, drug laws, religious freedom, campaign finance, and political speech.
The fear of whom the next President will appoint to the Supreme Court appears to be paramount in many people’s voting plans. Both Clinton and Trump are playing on these fears.
These fears, as they relate to the need to vote for Clinton or Trump, are largely unfounded. Supreme Court justices need to be approved by the Senate. Under Senate rules, no Supreme Court nominee can be appointed without a super majority. That’s 60 votes. The chance that either party will end up with 60 or more Senators is extremely remote.
And since the Senate, not the President, has the last word on who is confirmed to the Supreme Court, all those concerned about the Court’s composition should simply vote for Senators that share their views about social issues.
Second, most of the social issues listed above are firmly established. Supreme Court justices strongly adhere to stare decisis — the venerated principle to respect legal precedent.
In the case of abortion rights, the Supreme Court has repeated reaffirmed a women’s right to choose within Court-specified limits. The original Roe v. Wade decision was made by a majority of justices appointed by Democratic presidents. In Casey v. Planned Parenthood, a majority of Republican-appointed justices confirmed Roe v. Wade. Last month, in Whole Woman’s Heath v. Hellerstedt, the Court again confirmed Roe v. Wade, with the decisive vote coming from Justice Kennedy, a Republican appointee.
The right of gays to marry is also now settled law thanks to Chief Justice Robert’s decisive vote in Obergefeld v. Hodges. Roberts is also a Republican appointee. Roberts was also decisive in upholding Obamacare in King v. Burwell. Kennedy cast the deciding vote in the recent Fisher v. University of Texas decision that permits educational and other institutions to make decisions based on diversity, which is code word for permitting them to engage in affirmative action.
True, Republican and Democratic appointees rarely fully concur. But when it comes to radically overturning well-established legal principles, the Justices think for themselves. This is particularly true of justices that view themselves as swing votes.
Justice Kennedy, for example, in Citizens United was expected to join the Democratic appointees and support restrictions on campaign finance. If you read his highly controversial decision you’ll realize it was not dictated by the Republican party. It was motivated by fear that voting the other way would provide the Executive with the ability to block freedom of the press. For example, an MSNBC or a Fox News could, Kennedy suggested, be blocked from airing commentators opposed to the party in power.
In short, Supreme Court justices are not political pawns. They can and do think for themselves. They also respect prior judicial decisions. These facts, established law on social issues, and the super majority rule for confirming justices should reassure voters that social issues are not the big issue when it comes to voting for our next President. What’s far more important is not whom she or he gets past the Senate’s very tough screening process, but how she or he will manage our great domestic and foreign policy challenges.