Why Obama and Romney Don't Talk About the Supreme Court

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Trying to score political points off the direction the judiciary has taken rarely works.

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President Obama and Elena Kagan at a reception for the justice after her confirmation. (Jason Reed/Reuters)

The words "Supreme Court" made one appearance in Wednesday's presidential debate, when President Obama mentioned the Lily Ledbetter Fair Pay Act. The context was Congress-centered, however: Obama was explaining that the legislative branch had stepped in when the Court interpreted an employment-discrimination statute in a regressive way.

The high court came up so little in part because Obama doesn't want to talk about courts: His own philosophy is Congress- and president-centric, with judges ideally playing a secondary role. And meanwhile Governor Romney, on this issue, is running with both feet in a bucket.

On the right foot, the Republican doesn't want to repeat his past encomiums to Chief Justice John G. Roberts Jr. (His website says, "As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.") Roberts isn't popular with the Republican base after his single vote rescued Obama's health-care program last spring. (Naming Scalia, Thomas, and Alito only would create a different flap.) On the left foot, Romney knows he shouldn't begin discussing his potential Supreme Court appointees. That would give Obama and his allies a chance to charge that he will appoint justices who would vote to overturn Roe v. Wade, something a candidate seeking female support should avoid spelling out. 

In part it's because Roberts himself, whether by design or principle, maneuvered the Court out of the line of fire with his split-the-pie-but-give-the-big-half-to-Obama decision in the health-care case.

And, finally, it's because running against (or for) the Supreme Court is difficult. Even in 1936, when everyone following the news understood that president Franklin Roosevelt and the Nine Old Men were in a death-duel, FDR chose not to foreground the issue as he cruised to electoral triumph. The general public doesn't deal with court issues well. If pushed, they basically think judges should be "fair," and that's about it.

It's a problem for political discourse, because the truth is that the Court, and the courts, are increasingly central to American politics. In the wake of Bush v. Gore, former Solicitor General and Whitewater independent counsel Kenneth Starr explained in a lucid book that the Court sees itself as the head of the central branch of American government -- "first among equals," as he phrased it, with Congress and the President assigned to follow the Court's direction. It's a startling change in Court attitudes.

Only a generation ago, justices were serious about deferring to Congress on matters of policy. And it is a change that has become more, not less, marked in the years since, as the political system has become more and more paralyzed by partisan rancor and pure stupidity. The "first among equals" view is on display in this year's just-started October term, in which the justices have plunged into a policy-making role on racial issues and voting rights, among other things.

That claim of centrality is increasingly being staked by lower courts as well, especially by the Court of Appeals for the District of Columbia Circuit. That court is the farm team that produced Chief Justice Roberts and Justices Scalia, Thomas, and Ginsburg. (Justice Elena Kagan was also nominated for the D.C. Circuit by Bill Clinton, but blocked by Republican senators.) It is also a kind of mini-Supreme Court for all complicated questions of federal regulation. (Years ago, as a judicial clerk on the Fourth Circuit, I described to a D.C. Circuit clerk a civil-rights case I was working on; she got almost teary-eyed, and said, "I decide cases about hydroelectric power rates.")

As the incomparable Steve Pearlstein recently described in the Washington Post, the Republicans on the D.C. Circuit have begun a slash-and-burn assault on federal regulatory power, drawing frankly on libertarian ideology rather than statutes or the Constitution. Republicans have blocked Obama's attempt to bring balance to that court; today's New York Times points out that, as of today, three vacancies remain unfilled despite the administration's efforts.

So judges matter to ordinary people. It's just nearly impossible to explain why. And in a town-hall-cum-slugfest debate, the nuances are liable to be wasted at best, and dangerous to the candidates at worst.

But if I was disappointed, I suspect one viewer was glad: John Glover Roberts Jr. The chief justice's much-reviled compromise on health-care protected the Supreme Court from the early stages of the campaign. This week, the Court stayed under cover for the homestretch, when it refused to be drawn into the partisan case of early voting in Ohio.

If Obama wins re-election, those two decisions -- the dog that whimpered and the dog that didn't bark -- may come to be viewed as major reasons for his victory. And while that may disappoint Romney supporters, it may not bother Roberts all that much. He was on the Court when Obama arrived, and he will swear in Obama's successor, whether in 2013 and 2017. Young, influential, and determined, he has time to wait. Presidents come and go. Chief justices remain, and our political system doesn't handle that reality well.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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