The Supreme Court as a 2016 campaign issue
Donald Trump isn’t a fan of Chief Justice John Roberts. The Democrats want Citizens United overturned. Look for the Supreme Court to be one of many issues as Campaign 2016 kicks into high gear in January.
Donald Trump isn't a fan of Chief Justice John Roberts. The Democrats want Citizens United overturned. Look for the Supreme Court to be one of many issues as Campaign 2016 kicks into high gear in January.
So far, the major prospective candidates for the Democratic and Republican nomination have taken some scattered shots at recent Supreme Court decisions, and a few of the Justices, but the Court has mostly taken a back seat to other campaign subjects.
That is expected to change as the current group of nine Justices announce big decisions about Obamacare, public unions, one-person-one-vote and affirmative action just before the GOP and Democratic conventions get under way this summer.
Here's a quick look at what the major candidates are saying about the Supreme Court in general – with a few clues about who they may appoint to the Court if they are elected in November 2016.
The long-time presumptive Democratic nominee, who is getting a challenge from Bernie Sanders, was for a fleeting moment considered as a Court nominee by President Obama. Clinton is an outspoken critic of the Citizens United campaign finance decision from 2010, reportedly saying than anyone nominated to the Supreme Court by a President Hillary Clinton who need to swear to overturn Citizens United – unless a Clinton-backed amendment to invalidate Citizens United gets the job done first. Clinton also supports President Obama's immigration policies, which may get their own date with the Supreme Court in a few months.
The current Republican leader in national polls, Trump has a few opinions about recent Supreme Court decisions and a few Justices. Like most Republicans, Trump has condemned the Court's 2012 decision that upheld the Affordable Care Act aka Obamacare – and he blames Chief Justice John G. Roberts Jr. This weekend in South Carolina, Roberts got the Trump Treatment. "Justice Roberts really let us down. What he did with Obamacare was disgraceful, and I think he did that because he wanted to be popular inside the Beltway," he told a receptive audience. Trump also called out Justice Antonin Scalia for Scalia's recent mismatch theory questioning in the Fisher affirmative action arguments. As for potential federal court nominees, Trump said, "We want smart, conservative and we want people that are truly in love with the Constitution." (In the past, he's mentioned his own sister, a federal judge, as a potential Supreme Court nominee, but cautioned she is a liberal.)
Like Clinton, a President Sanders would reform campaign financing. "No nominee of mine to the United States Supreme Court will get that job unless he or she is loud and clear that one of their first orders of business will be to overturn Citizens United," Sanders said in October. He also supports President Obama's immigration plans, supports one-person, one-vote, and probably wouldn't support an effort to overturn Roe v. Wade.
Cruz actually clerked for a U.S. Supreme Court Chief Justice, William Rehnquist, and was Texas solicitor general, so he has a few pointed legal opinions of his own. He has publicly questioned the role of "five unelected lawyers" in making landmark decisions on same-sex marriage and Obamacare, directly criticizing Chief Justice Roberts. Cruz recently told Bloomberg News that as President, "Unlike many of the other candidates, I will be willing to spend the capital to ensure that every Supreme Court nominee that I put on the court is a principled judicial conservative."
As Clinton and Sanders have promised to overturn Citizens United, Rubio has stated we would move to overturn the Supreme Court decision that legalized same-sex marriages. "It is the current law. I don't believe any case law is settled law," Rubio told NBC News. "Any future Supreme Court can change it." He is also opposed to Obamacare and Roe v. Wade.
Carson has said he would appoint Justices that would support overturning Roe v. Wade, and he also made statements in May about a constitutional reconsideration of the Court's powers to strike down laws. Carson also criticized the Court's same-sex marriage decision, and wrote an op-ed for Time magazine about Obamacare, where he criticized Chief Justice Roberts.
The son of the 41st President and brother of the 43rd President has said he wouldn't pick a Justice like David Souter, like his father did, who often voted with the Court's liberals. Bush has also cited the Kelo eminent domain decision has the one he would confront. But Bush also has opposed reauthorizing the Voting Rights Act.
Among the remaining GOP candidates, Obamacare and Chief Justice Roberts have been frequent targets. Chris Christie has promised he won't nominate someone from Harvard or Yale to the Court, and he opposed the Court's same-sex marriage decision. Rand Paul has long talked about privacy issues, including government surveillance. Carly Fiorina opposed same-sex marriage before the case was decided by the Supreme Court. John Kasich has said he respects the Court's same-sex marriage decision, while Mike Huckabee has opposed it. Huckabee also has criticized the Court's rulings on same-sex marriage and other social issues, saying that "the Supreme Court is not the Supreme Being."
Scott Bomboy is the editor in chief of the National Constitution Center.