Why Obama and Romney won’t touch the Supreme Court in Campaign 2012

A president’s most significant power is the real third rail of politics

Jeff Greenfield is a Yahoo! News columnist and the host of “Need to Know” on PBS. A five-time Emmy winner, he has spent more than 30 years on network television, including time as the senior political correspondent for CBS News, the senior analyst for CNN, and the political and media analyst for ABC News. His most recent book is “Then Everything Changed: Stunning Alternate Histories of American Politics.”

Last week brought another lesson that the most significant of all presidential powers--the making of war not excepted--is the power to nominate justices to the Supreme Court. A chief executive’s most ambitious domestic policies may be ignored or reversed by future presidents and Congresses; a new administration can end a war. By contrast, three justices appointed more than 20 years ago cast votes last week that would have struck down the current president’s key domestic achievement. Barring illness or injury to one of these justices, Ronald Reagan and George H.W. Bush will be powerfully influencing public policy for at least another decade.

And this fall will likely bring a different kind of lesson: If history is any guide, this most powerful of presidential prerogatives will be one of the least significant issues in deciding the presidential race.

[Related: How the court took its fight to the media]

Supreme Court decisions can certainly roil the political waters. Franklin Roosevelt and his supporters were infuriated during his first term by a string of Court decisions--many by 5-4 or 6-3 votes--that eviscerated the power of Washington and state governments to regulate economic activity. When the Warren Court outlawed school segregation in 1954, a generation of Southern politicians made “massive resistance” a key to their electoral fortunes; and the Warren Court’s rulings for criminal defendants helped fuel a political “law and order” backlash.

But, surprising as it may seem, these controversial decisions never turned the Supreme Court itself into a major election issue.

Angry as FDR was at the Supreme Court’s decisions, he got a lesson in the public’s respect for the institution when he said at a 1935 press conference that “we have been relegated to a horse and buggy definition of interstate commerce.” The press reaction so sharp that, as New Deal historian William Leuchtenberg wrote, “The president never mentioned the court during his re-election.” It was only after Roosevelt’s landslide victory in 1936 that he unveiled his plan to “pack” the Supreme Court with as many as six additional justices. (The plan died in a hail of bipartisan Congressional opposition, but later appointments and a change of mind by another Justice Roberts turned the Court into a New Deal ally).

In 1968, rapidly rising crime rates, along with an outbreak of violence in inner cities and on college campuses, made “law and order” a significant theme in the campaigns of Richard Nixon and third-party candidate George Wallace. But Nixon’s comments on the Supreme Court itself were muted. In his acceptance speech, he said, “Let us always respect, as I do, our courts and those who serve on them, but let us also recognize that some of our courts in their decisions have gone too far in weakening the peace force as opposed to the criminal forces in this country.” Nixon’s big applause line came when he pledged “we’re going to have a new Attorney General of the United States!”--suggesting that Ramsey Clark was a more tempting target than Earl Warren.

You have go back a century, to the 1912 Presidential campaign, to find an election where the Supreme Court was at the center of the debate. For years, progressive governors like California’s Hiram Johnson and Wisconsin’s Robert LaFollette had championed the ballot initiative and the recall of elected officials. Now, with federal courts invalidating state laws aimed at regulating wages and hours, the Progressive Party demanded “such restriction of the power of the courts as shall leave to the people the ultimate authority to determine fundamental questions of social welfare and public policy.” And the Progressive Party candidate, former President Theodore Roosevelt, backed the idea not only of recalling judges, but of “recalling” specific court decisions under some circumstances. To President (and future Chief Justice) William Howard Taft, this notion was “radically erroneous and destructive ... a form of muckraking of the courts.” The federal bench, he argued, was a bulwark of protection against the radical, socialistic tendencies at work in the states.

Not incidentally, the winner of the 1912 election, New Jersey Gov. Woodrow Wilson, avoided the issue of judicial recall, focusing instead on the substance of social legislation. Wilson may have recognized, as FDR and Nixon did after him, that a frontal assault on the Supreme Court raises the specter of a president who would seek to tip the balance of power among the three branches of government. A recent and relatively temperate dose of presidential criticism--Obama’s slap at the “Citizens United” decision during his 2010 State of the Union address--received a wary response from the news media.

It is, of course, possible--maybe even probable-- that a Supreme Court decision striking down the Affordable Care Act would have written a new chapter in this history. Coming little more than four months before an election, a major decision sharply split along explicitly partisan lines would have put the case squarely into the political arena. With polls showing more Americans regarding the Court as politically motivated in its judgment, that would be the last thing anyone with a protective instinct for the Court would have wanted: someone, say, like a Chief Justice of the United States, whose vote could save the Court from that fate.

  • Men who built Toronto mystery tunnel wanted place to 'hang out,' police say
    Men who built Toronto mystery tunnel wanted place to 'hang out,' police say

    Police say they have identified and interviewed two men who built a tunnel near a Pan Am Games venue in Toronto and have determined there is no criminal intent or threat.

  • Obama, Israel's Netanyahu clash over Iran diplomacy
    Obama, Israel's Netanyahu clash over Iran diplomacy

    Israeli Prime Minister Benjamin Netanyahu warned the United States on Monday that the nuclear deal it is negotiating with Iran could threaten Israel's survival and insisted he had a "moral obligation" to speak up about deep differences with President Barack Obama on the issue.

  • Shatner Back In LA After Nimoy Funeral No-Show
    Shatner Back In LA After Nimoy Funeral No-Show

    William Shatner has been photographed arriving back at Los Angeles airport just hours after his Star Trek co-star Leonard Nimoy's funeral which he was unable to attend. On Sunday the New York Daily News dubbed the actor, who played Captain Kirk in the cult sci-fi series, as "Captain Jerk" for his no-show. Shatner said on Saturday he could not make the service because he already had plans to appear at a Red Cross ball in Florida. Shatner shared the image of the Daily News' front page on Twitter and invited people to "discuss it".

  • North Korea angered by U.S.-South Korea military drills, fires missiles off coast
    North Korea angered by U.S.-South Korea military drills, fires missiles off coast

    North Korea fired two short-range missiles off its east coast on Monday, South Korean officials said, a defiant response to annual military exercises between South Korea and the United States but one which drew a swift protest from Japan.

  • Africa's medicine men key to halting Ebola spread in Guinea
    Africa's medicine men key to halting Ebola spread in Guinea

    By Misha Hussain MACENTA, Guinea (Thomson Reuters Foundation) - In a land where witchcraft is sought after more than science for curing illness, medicine men in Guinea say the Ebola epidemic would be over by now if they had been properly included in the outbreak response. From broken bones to impotence to madness, these traditional healers say they have a potion, spell or touch for many ailments Western doctors can't treat. In the forest region of southeastern Guinea, where the virus was detected last March, disseminating information using modern technology has proved challenging, resulting in the disease outstaying its welcome. Karamoko Ibrahima Fofana, president of the association of traditional healers in the town of Macenta, said guérisseurs, as they are known, have unique access to remote villages.

  • Bill Clinton Portrait Contains Lewinsky Clue
    Bill Clinton Portrait Contains Lewinsky Clue

    An artist who painted a portrait of Bill Clinton has revealed the work contains a secret reference to the former US President's affair with Monica Lewinsky. In an interview with the Philadelphia Daily News, Nelson Shanks revealed the shadow on the left side of the portrait was cast by a mannequin in a blue dress. This was an allusion to Mr Clinton's relationship with the 22-year-old White House intern, he said, calling the former president "probably the most famous liar of all time". Mr Shanks said: "If you look at the left-hand side of it there's a mantle in the Oval Office and I put a shadow coming into the painting and it does two things.

  • U.S., partners conduct nine air strikes against Islamic State: task force

    WASHINGTON (Reuters) - The United States and its coalition partners conducted four air strikes against Islamic State militants in Syria and five in Iraq on Sunday and Monday, according to the U.S. military. In a statement on Monday, the Combined Joint Task Forceleading the air operations said one strike near Dayr az Zawr in Syria hit a crude oil collection point. The others, near Kobani, destroyed a bunker and vehicle, and hit a tactical unit. In Iraq, air strikes near Al Asad, Bayji and Kirkuk hit tactical units, checkpoints, fighting positions, and boats and vehicles. ...

  • 8 things you need to know before claiming new family tax cut
    8 things you need to know before claiming new family tax cut

    The version of the family tax credit announced by Harper last October was a tweaked version of a family income-splitting announcement he'd first made in the throes of the 2011 election campaign.

Follow Yahoo! News