It happens every year in late June or early July. The judiciary, often the stealth branch in our tripartite federal government, appears on the American public’s radar screen due to a few Supreme Court decisions on Big Issues. This year, the topics were habeas protection for Guantanamo detainees, the death penalty for crimes not resulting in death and guns. After the opinions are read, the justices scatter, and the media find something else to talk about.
Sadly, the disappearance of the Supreme Court from national view is all too often accompanied by the vanishing of the Constitution from public discourse, even during pivotal election years.
The stark contrast between the invisibility of the Supreme Court and the conspicuousness of presidential candidates during the run-up to the first Tuesday in November minimizes the Court’s value as an electioneering pawn. By the time the conventions roll around, the Supreme Court’s end-of-term flurry is largely forgotten.
On one hand, this is good; judges are, after all, supposed to be apolitical. Realistically, though, the judicial selection process has for 20 years been one of the most politically charged events on Capitol Hill.
A frank discussion by the candidates about the Court, bereft of the code words like “empathy” and “strict constructionism” that each side uses to assuage its base on the abortion issue, probably wouldn’t be such a bad idea. A meaningful and substantive Supreme Court presence in the campaigns might even become a discussion about the Constitution itself — a talk that America needs to have.
Polling data confirm the notion that Americans understand the fundamental importance of judicial nominations.
A recent Rasmussen poll revealed that nearly two-thirds of Americans consider the president’s power to nominate justices “very important.” The same poll reveals a deep divide in how Americans perceive the role of the Supreme Court based on their political preference, with McCain supporters overwhelmingly in favor of the idea that “judges should rule on what is in the Constitution” and fewer than one third of Obama supporters agreeing.
Members of the political right will doubtless use this poll (if they haven’t already) to caricature Obama and Biden as un-American elites eager to take a bottle of Wite-Out to our beloved Constitution. Leftist commentators, if they pay attention to the poll at all, will likely dismiss it and go back to talking about McCain’s multiple houses as evidence that he’s out of touch with ordinary Americans on pressing economic issues.
Both of these responses are inappropriate. The poll does not deserve to be ignored, but it hardly confirms conservatives’ harping about the grievous wrongs of liberal constitutionalism. Instead, it says something quite unflattering about the way our contemporary political culture addresses — or, more accurately, fails to address — the Constitution.
In the 35 years since Roe v. Wade, the American political right has subtly claimed the Constitution as its exclusive domain and, with remarkable effectiveness, has forced the left to virtually hide from our country’s founding document.
That only 29 percent of Obama supporters consider it a judge’s role to “rule on what is in the Constitution” speaks volumes about the success of organizations like the Federalist Society at claiming an unquestioned constitutional mantle for conservative positions on abortion, privacy, affirmative action and the like. Whether or not conservatives are actually correct in their constitutional views no longer matters because liberals have ceded the high ground by refusing to talk about the Constitution.
It hardly bears saying, but we have a problem if one party in our constitutional republic would rather not talk about the Constitution itself. The fact that the words “abortion” and “privacy” don’t happen to appear in the document doesn’t end the discussion in favor of the conservative movement. But far too often, such simplistic debates are all we have.
Ignoring the Constitution would have been unthinkable to earlier generations of American statesmen. The Lincoln-Douglas debates of 1856 were rife with disagreement regarding a proper interpretation of the Constitution that today would probably be confined to the floors of appellate courts.
The hundreds of Yalies waking up early for Akhil Amar’s Constitutional Law class this semester will hear again and again that the Constitution was meant to be read and discussed by every literate American. A couple hundred years and 26 amendments shouldn’t have changed our fundamental perspective on the same document.