Campaigns and the Court: The U.S. Supreme Court in Presidential Elections

By Donald Crier Stephenson Jr. | Go to book overview

PREFACE

With a few minutes of reflection, anyone who can read would surely acknowledge that the United States Supreme Court is not only a legal body—an institution that says what the law is in the context of deciding cases—but a “political” body, too. That is, as it resolves conflicts between litigants who disagree over the correct meaning of a clause in the Constitution or a provision in an act of Congress, the Court affects the allocation of power and shapes public policy. In this sense, the Court has been political from practically the beginning. After all, the Court has consisted mainly of politicians who have been nominated and confirmed by politicians in order to perform what, at heart, are largely political tasks.

If the Court is necessarily “in” politics in this sense of the word, Americans use the word political to refer to something else as well: partisan politics—the continual struggle between those organized groups called political parties to control public offices, public resources, and the nations destiny. In this more common use of the word, the federal courts, especially the Supreme Court, are ordinarily expected today to be “above politics,” meaning that judges and justices are supposed to refrain from publicly taking sides in elections or otherwise jumping into the rough-and-tumble of partisan combat. (By contrast, in states with elected judiciaries, judges are frequently thrust into partisan combat by necessity.)

Yet, despite the belief that the Court should stand aloof from partisan struggles, most people would probably express little surprise were the United States Supreme Court to be an issue in the next presidential campaign. One candidate might fault the Court for evils supposedly either wrought or left uncorrected by one or more decisions, and might promise to “do something” about the Court if elected. The other candidate might come to the Court’s defense. The future of the Court, the course of public

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