Control of Supreme Court hangs in the balance this November

This year’s elections are different in many ways, among them the fact that our new president and Senate may have a potentially historic opportunity to reshape the Supreme Court. American voters care more than usual about the U.S. Supreme Court this election cycle, with good reason.

{mosads}Here’s what’s at stake for the Supreme Court with the upcoming election: The next U.S. president — either Democratic nominee Hillary Clinton or Republican nominee Donald Trump — may hold the power to fill the seat left vacant when Justice Antonin Scalia died suddenly earlier this year.

President Obama’s nomination of Judge Merrick Garland to the seat is being blocked by Senate Republicans who have refused to hold a vote, creating the strong potential of at least one appointment for the next president and possibly three others.

The Supreme Court is aging. Justice Ruth Bader Ginsburg is 83, Justice Anthony Kennedy just turned 80 and Justice Stephen Breyer is 78. The court is currently made up of four reliable liberal members, three reliably conservative justices, and Kennedy, who typically votes with the conservatives except on issues such as gay rights and, lately, affirmative action.

Voters realize the next president and the party controlling the U.S. Senate will probably set the long-term direction of the high court and will cast their votes accordingly in November. In the last two presidential elections, about 30 percent of voters indicated the Supreme Court was a very important issue. Now that more than half of voters are paying attention to the fate of the court, it is no surprise that interest groups who care about issues before the court have attempted to connect Senate elections with the choice for president in key battleground states.

Garland’s stalled nomination helped push the issue into the spotlight, educating voters about the role the president and Senate play in judicial confirmations. More recently, several high-profile cases have resulted in ties upholding lower court decisions. In June, the court’s 4-4 split affirmed a lower court decision upholding an injunction blocking Obama’s immigration plan to keep up to 5 million unauthorized immigrants from deportation. In March, a 4-4 tie served a win to organized labor that allowed public employees who prefer not to join unions to be required to pay some union fees for bargaining activities.

The high-profile decisions — one for conservatives and one in favor of liberals — have energized certain constituencies. I predict this will be a three-branch election where voters will cast ballots for president and Senate seats based on the kind of justices they want on the Supreme Court.

Traditionally, conservatives have cared a great deal more about the Supreme Court in elections than liberals. This year, progressives and Democrats seem more concerned about the judicial confirmation process than in the past. Democrats have argued that Republican senators are being obstructionist because of their refusal to hold hearings on Garland’s nomination, while some conservatives are quietly saying that keeping Republicans in the Senate is essential to blocking potential Clinton nominees to the high court.

The presidential candidates have been talking more than usual about the Supreme Court. Trump most often mentions the court when discussing gun rights; Sen. Bernie Sanders (Vt.), who had run in the Democratic primaries, urged his supporters to back the presidential candidate who would appoint justices willing to overturn the Citizens United v. Federal Election Commission decision allowing almost unlimited corporate and union campaign spending; and Clinton has raised concerns about the Supreme Court’s recent decisions on voting rights and immigration, among others.

Democratic Senate candidates are addressing the Supreme Court confirmation process more than is typical as a way to encourage turnout among liberal voting groups who have been directly affected by recent court decisions. Progressive interest groups and candidates will do whatever they can to link the Senate races with the presidential races, especially in states where Clinton is leading and the Democrats have a chance to gain a Senate seat.

With the noise of the election only growing louder as we march toward November, the issue of judicial appointments will remain a key deciding factor for voters as they deliberate their ballot choices this fall.

Miller is a professor of political science and director of the Law and Society Program at Clark University in Worcester, Massachusetts. He has served as a judicial fellow at the U.S. Supreme Court and as a congressional fellow in the U.S. Senate. He is the author of “Judicial Politics in the United States.”

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