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

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.