(Bloomberg Politics) — Presidential candidates of both parties have been routinely blasting the U.S. Supreme Court on the campaign trail. Whether it will ultimately bring them more votes is another matter.
While Democrats pound on the court for rejecting campaign finance regulations, Republicans are seizing on last month’s Patient Protection and Affordable Care Act (PPACA) and gay-marriage rulings as evidence the court needs an overhaul.
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The Constitution “was written for the purpose of hemming in government, not growing it,” Republican Sen. Marco Rubio of Florida said in Iowa this month. “And we have at least five people on the court who consistently feel differently. We have to change it.”
The next president will be in prime position to reshape the court. Barring an unexpected death or retirement, an unprecedented four justices will be 78 or older come Election Day. That all but guarantees a vacancy, if not several.
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Those appointments could transform the closely divided court. Replacement of a liberal justice with a conservative could doom abortion rights and affirmative action and put new curbs on federal power. A shift the other way could overturn the 2010 Citizens United decision, a campaign-finance ruling described as a “grave error” by Democrat Hillary Clinton.
“I will do everything I can to appoint Supreme Court justices who protect the right to vote and do not protect the right of billionaires to buy elections,” Clinton told activists in Iowa in May.
The challenge for the candidates will be getting the attention of apathetic voters. The court hasn’t been a major campaign issue since 1968, when Richard Nixon held himself out as the law-and-order candidate, criticizing pro-defendant rulings issued by the Supreme Court under Chief Justice Earl Warren.
“There’s often a building up of expectations that this will be the presidential election where court issues and constitutional issues will matter,” said David Yalof, a political science professor at the University of Connecticut who specializes in constitutional law and judicial politics. “But modern history says the opposite. Rarely do constitutional issues come up.”
That hasn’t stopped candidates on both sides from trying. Like Clinton, Democrats Bernie Sanders and Martin O’Malley say they’ll insist that their Supreme Court nominees oppose Citizens United, the ruling that allowed unlimited corporate and union campaign spending. Among Republicans, Ted Cruz has gone so far as to say the nine justices should be subject to retention elections.
“The next president of the United States, whoever that individual may be, could choose up to three, maybe even four members of the Supreme Court,” former Texas Governor Rick Perry told voters in South Carolina. “This could be about individuals who have an impact on you, your children, and even our grandchildren. That’s the weight of what this election is really about.”