USA Today's Flawed Explanation On Why The Supreme Court Is Not An Election Issue
Blog ››› ››› SERGIO MUNOZ
In a USA Today article on the absence of the Supreme Court as a campaign issue in the presidential election, reporter Richard Wolf claimed the "most important" explanation is that the next president will be unlikely to nominate a justice who could significantly tilt the court. Not only is Wolf's reasoning at odds with that of journalists, advocates, and experts across the political spectrum, in his discussion of the aging justices, Wolf cites facts about Supreme Court retirements that undercut his thesis.
In addition to his surprising conclusion that the next president will not be able to change the ideological direction of the Court "very far," Wolf also claimed it has not become an issue in the campaign because Democrats were "satisfied" with the health care reform ruling, and Republicans can't "criticize" a conservative Court. From the October 24 article:
The Supreme Court could be transformed by the man elected president Nov. 6, but you wouldn't know it from the campaign the candidates are waging.
The reasons are many: Democrats were satisfied with the court's ruling in June that upheld Obama's health care law. Republicans can't really criticize a court still dominated by conservatives. Most voters are more focused on jobs and the economy. And those who care deeply about judicial issues likely chose a candidate long ago. Perhaps most important, the chance that Obama or Romney could tilt the court very far in one direction or the other is remote. That's because most justices choose to retire when their party is in power, and no retirements are immediately forecast.
But many progressives were not satisfied with the Court's ruling that upheld health care reform. Supporters of the law were certainly glad that it was not struck down, but conservative Chief Justice John Roberts' opinion itself, if not the holding, was widely criticized for its conservative rationale. A New York Times editorial, "The Radical Supreme Court," condemned the Chief Justice's reasoning that unified the conservative wing of the Court in a "stunning" limitation of Congress' future power to regulate the national economy, and referred to the conservative justices as "radical innovators, aggressively stepping into political issues to empower the court itself."
Conservatives have also freely criticized the Court -- despite its strong leaning in their favor -- in particular the Chief Justice, who was vilified by right-wing media after the health care reform decision. In fact, Wolf confirmed this dislike was widespread in Republican ranks in a previous article, writing that according to a Gallup poll taken soon after the ruling, "Republicans have turned against the Supreme Court and Chief Justice John Roberts with a vengeance[.]"
Further, Wolf's assumption that justices will only retire during the administration of an ideologically like-minded president is flawed. With the notable exception of progressive Justice Thurgood Marshall, who chose to step down due to advanced age and declining health during a Republican administration, it is true that in recent times justices have tended to retire during administrations of the same party as the president who appointed them. The next presidential term, however, could very well provide a Marshall-like exception to the rule. As Wolf himself observes, progressive Justice Ruth Bader Ginsburg will be 80 years old next year (and is a cancer survivor), while liberal Justice Stephen Breyer will approach that age by the end of the next presidential term.
The retirement of frequent swing vote Justice Anthony Kennedy -- who will also turn 80 years old during the next presidential term -- could also significantly tilt the court, regardless of the political affiliation of the next president. Although Wolf noted the previous swing vote Justice Sandra Day O'Connor was replaced with conservative Justice Samuel Alito, Wolf failed to report how much more conservative this replacement made the Court. As noted by The New York Times on those changes to the Court:
[O]nly one change -- Justice Alito's replacement of Justice O'Connor -- really mattered. That move defines the Roberts court. "That's a real switch in terms of ideology and a switch in terms of outlook," said Lee Epstein, who teaches law and political science at Northwestern University and is a leading curator and analyst of empirical data about the Supreme Court.
The point is not that Justice Alito has turned out to be exceptionally conservative, though he has: he is the third-most conservative justice to serve on the court since 1937, behind only Justice Thomas and Chief Justice Rehnquist. It is that he replaced the more liberal justice who was at the ideological center of the court.
Though Chief Justice Roberts gets all the attention, Justice Alito may thus be the lasting triumph of the administration of President George W. Bush. He thrust Justice Kennedy to the court's center and has reshaped the future of American law.
Other conservative and liberal experts and advocates have pointed out the importance of Supreme Court appointments as an election issue, some of whom Wolf quotes as expressing this view. In fact, the print media has stepped up its reporting on this matter of late, and the Associated Press published an article the day before Wolf's entitled "Why It Matters: 1 New Justice Could Change A Lot." Thus, it is peculiar that USA Today would choose now to play the contrarian and downplay the importance of Supreme Court appointments. As Media Matters previously reported, lack of coverage of this important issue has been a consistent problem in broadcast news. USA Today should not join this trend.