What About the Court?

Yesterday I argued that it made much more sense to base one’s vote for president on the economy rather than on social issues. But there is one key rationale for voting on social issues that I didn’t address.

As I mentioned, the president really doesn’t have that much direct influence over questions like abortion, gun control and same sex marriage—except for the not inconsiderable power of the bully pulpit and the ability to influence people from a position of leadership. As I further argued, in these matters, however, presidents tend to follow popular sentiment instead of taking the political risk of trying to change it.

But the president does have one key responsibility that is potentially very powerful in deciding these issues. Activists using these social issues will emphasize that whoever is president will appoint a lot of federal judges and, most significantly, is quite likely to be filling vacancies on the Supreme Court. This is often the most powerful motivator for someone who, say, cares very strongly about the abortion question, to vote one way or the other for president. The next president could potentially change (or solidify) the makeup of the court that is the final arbiter on some of these questions.

Does that mean that, if one of these social issues is extremely important to you, you should vote on that basis rather than the economy? I would argue not. For one thing, no matter which side you are on, the battle will only be harder if the economy tanks. For another, in the long run popular opinion matters much more than individual court decisions. In the past half-century, how many Supreme Court decisions have really been game changers for controversial social issues? Can we think of one during that specific time span other than Roe v. Wade back in 1973? That ruling is really the exception that proves the rule. Generally, the Court is very careful not to get too far ahead of public opinion.

Sure, there have been plenty of decisions that one side or the other really doesn’t like, but I would argue that these are generally decided on legitimate constitutional grounds rather than partisan voting of the Justices. If there seems to be a lot of 5-4 decisions, it has more to do with judicial philosophy than politics. The one case, of course, that is often cited when worrying about the makeup of the Supreme Court is Bush v. Gore in 2000. But realistically, how often will the Court be called on to settle presidential elections? And while journalists and detractors like to refer to it as a 5-4 decision, that split was only on whether Florida law allowed a new statewide recount after December 12. The key decision in the case was to reject Al Gore’s request for a partial cherry-picked recount and that argument was rejected by an overwhelming 7-2 vote.

Also, if the hope or fear of a new Roe v. Wade type ruling is your motivation for voting for one presidential candidate or another, consider this. Quite a few people argue that that landmark ruling was actually something of a setback in the cause of abortion rights. Because that ruling was made by a panel of justices not elected directly by voters and effectively overruled the authority of state legislatures and the Congress to decide the issue, it fired up people who saw abortion as immoral. The battle over the issue has continued for nearly four decades since and shows no signs of abating. Compare that to what happened in Britain. Public opinion, pro and con, in that country roughly broke down similar to the U.S. Abortion was legalized by Parliament in 1967, reflecting that a (slight) majority of citizens favored its legalization. And while there are certainly abortion opponents in the UK to this day, it has not been nearly the divisive issue there that it has been in the States because the question was settled democratically and not by judicial fiat.

This may not be an argument that convinces many people, but I still contend that things will turn out better for everyone if, in the presidential election, voters focus on the economy and work on social issues closer to home.