Skip to main content
Part of complete coverage on
 

Why are candidates silent on Supreme Court?

By Jeffrey Toobin, CNN Senior Legal Analyst
updated 12:31 PM EDT, Fri September 28, 2012
The justices of the U.S. Supreme Court sit for their official photograph on October 8, 2010, at the Supreme Court. Front row, from left: Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony M. Kennedy and Ruth Bader Ginsburg. Back row, from left: Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr. and Elena Kagan. The justices of the U.S. Supreme Court sit for their official photograph on October 8, 2010, at the Supreme Court. Front row, from left: Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony M. Kennedy and Ruth Bader Ginsburg. Back row, from left: Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr. and Elena Kagan.
HIDE CAPTION
Today's Supreme Court
John G. Roberts
Antonin Scalia
Anthony M. Kennedy
Clarence Thomas
Ruth Bader Ginsburg
Stephen G. Breyer
Samuel A. Alito Jr.
Sonia Sotomayor
Elena Kagan
<<
<
1
2
3
4
5
6
7
8
9
10
>
>>
STORY HIGHLIGHTS
  • Jeffrey Toobin: In this campaign, candidates have been silent on the Supreme Court
  • But the court is central to what endures in American government and life, he says
  • He says, with justices aging, it's likely that next president will make an appointment
  • Toobin: The candidates should be revealing their plans, philosophies for the court

Editor's note: Jeffrey Toobin is a senior legal analyst for CNN and a staff writer at The New Yorker magazine, where he covers legal affairs. His new book, "The Oath: The Obama White House and the Supreme Court," has just been published.

(CNN) -- What's the most important issue that neither President Obama nor Mitt Romney ever mention on the campaign trail?

The future of the Supreme Court.

Need proof? Try imagining how this election season would have unfolded if the justices had decided Citizens United a different way in 2010. Or suppose that the court had overturned, rather than upheld, the Affordable Care Act earlier this year. The Obama presidency, to say nothing of his campaign, might look very different today. As always, it was the Supreme Court that had the final word on what endures in the American government and in American life.

Jeffrey Toobin
Jeffrey Toobin

Citizens United transformed how campaigns can be funded, and the ACA case assured that 30 million people will soon obtain health insurance. But the stakes will be nearly as high in the other cases that will soon come before the justices.

The court begins its new session Monday, and this fall will consider the future of affirmative action in college admissions, in a case out of the University of Texas. And the justices are likely to decide whether the Voting Rights Act of 1965 is still constitutional. Same-sex marriage will probably come before them as well, either in the form of a challenge to the constitutionality of the Defense of Marriage Act or in the test of California's Proposition 8.

Different messages in battleground state
Romney campaign questions polls
New polls sees Obama with a slight lead

But these, of course, are only the cases that we know are in the Supreme Court pipeline. It's always hard to predict what the big cases will be. Who, for example, predicted that the court would decide the 2000 presidential election? We do know that the cases will be huge. Every important political and legal question in the country ultimately winds up before the justices.

Opinion: Why Romney's rallies are a waste of time

Presidents pick justices; we just don't know when. The current Supreme Court is now a very old group. There are four justices in their 70s. Ruth Bader Ginsburg is 79; Antonin Scalia and Anthony Kennedy are 76; Stephen Breyer is 74. Justices also care deeply about who chooses their successors. Ginsburg has said that she would like to serve until she is 82, like her idol Louis Brandeis. Even so, we can be sure that she will leave some time next term, but only if her fellow Democrat, Barack Obama, wins a second term. By the same token, it's unlikely that Scalia or Kennedy, both Republicans, would leave during an Obama presidency.

But that's only if they have the choice. The melancholy fact is that people in their 70s don't always get to choose when they will retire. Nature sometimes intervenes. And predictions about retirements (like predictions about cases) are perilous. Jimmy Carter is the only president to serve a full term and not have the opportunity to name a single justice. Richard Nixon was president for only five and a half years (he had to leave early) but he had four appointments to the Supreme Court.

Opinion: Supreme Court holds U.S. rights legacy in the balance

The opportunity to nominate Supreme Court justices is one of the most important ways for presidents to extend their legacies. John Paul Stevens retired in 2010 after 35 years on the court (he was appointed by Gerald Ford). Presidents can only serve for eight years, but justices now routinely serve for 30. And unlike presidents, justices always have the last word. As Justice Robert Jackson observed long ago, "we are not final because we are infallible, but we are infallible only because we are final."

With a little more than a month to go, it's not too late to ask the candidates to take a stand on their plans for the court. The president has already had two appointments, and he named Sonia Sotomayor and Elena Kagan. But what does Obama, a former law professor, think about the court? Does he believe in a "living" Constitution, whose meaning evolves over time? Or does he believe, like Justices Scalia and Thomas, that the meaning of the document was fixed when it was ratified, in the 18th century.

By the same token, what kind of justices would Romney appoint? Who are his judicial role models? Romney has praised Chief Justice John Roberts, but is the candidate still a fan even after the chief voted to uphold the ACA?

No one is asking these questions. But there are few more important things to know about our current and future presidents.

Follow @CNNOpinion on Twitter

Join us at Facebook/CNNOpinion

The opinions expressed in this commentary are solely those of Jeffrey Toobin.

ADVERTISEMENT
Part of complete coverage on
updated 12:15 PM EDT, Sun July 27, 2014
Megan McCracken and Jennifer Moreno say it's unacceptable for states to experiment with new execution procedures without full disclosure
updated 1:28 PM EDT, Sat July 26, 2014
Jeff Yang says it's great to see the comics make an effort at diversifying the halls of justice
updated 11:55 AM EDT, Sat July 26, 2014
Rick Francona says the reported artillery firing from Russian territory is a sign Vladimir Putin has escalated the Ukraine battle
updated 2:22 PM EDT, Sun July 27, 2014
Paul Callan says the fact that appeals delay the death penalty doesn't make it an unconstitutional punishment, as one judge ruled
updated 6:25 PM EDT, Thu July 24, 2014
Pilot Robert Mark says it's been tough for the airline industry after the plane crashes in Ukraine and Taiwan.
updated 11:10 AM EDT, Fri July 25, 2014
Jennifer DeVoe laments efforts to end subsidies that allow working Americans to finally afford health insurance.
updated 11:33 AM EDT, Sat July 26, 2014
Ruti Teitel says assigning a costly and humiliating "collective guilt" to Germany after WWI would end up teaching the global community hard lessons about who to blame for war crimes
updated 8:45 AM EDT, Fri July 25, 2014
John Sutter responds to criticism of his column on the ethics of eating dog.
updated 9:02 AM EDT, Fri July 25, 2014
Frida Ghitis says it's tempting to ignore North Korea's antics as bluster but the cruel regime is dangerous.
updated 2:50 PM EDT, Fri July 25, 2014
To the question "Is Putin evil?" Alexander Motyl says he is evil enough for condemnation by people of good will.
updated 2:03 PM EDT, Thu July 24, 2014
Laurie Garrett: Poor governance, ignorance, hysteria worsen the Ebola epidemic in Sierra Leone, Guinea, Liberia.
updated 9:49 AM EDT, Thu July 24, 2014
Patrick Cronin and Kelley Sayler say the world is seeing nonstate groups such as Ukraine's rebels wielding more power to do harm than ever before
updated 6:05 PM EDT, Wed July 23, 2014
Ukraine ambassador Olexander Motsyk places blame for the MH17 tragedy squarely at the door of Russia
updated 7:42 AM EDT, Thu July 24, 2014
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
updated 2:53 PM EDT, Thu July 24, 2014
Les Abend says, with rockets flying over Tel Aviv and missiles shooting down MH17 over Ukraine, a commercial pilot's pre-flight checklist just got much more complicated
updated 9:17 AM EDT, Thu July 24, 2014
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
updated 12:37 PM EDT, Thu July 24, 2014
Gerard Jacobs says grieving families and nations need the comfort of traditional rituals to honor the remains of loved ones, particularly in a mass disaster
updated 10:13 AM EDT, Thu July 24, 2014
The idea is difficult to stomach, but John Sutter writes that eating dog is morally equivalent to eating pig, another intelligent animal. If Americans oppose it, they should question their own eating habits as well.
updated 12:30 PM EDT, Wed July 23, 2014
Bill van Esveld says under the laws of war, civilians who do not join in the fight are always to be protected. An International Criminal Court could rule on whether Israeli airstrikes and Hamas rocketing are war crimes.
updated 10:08 AM EDT, Wed July 23, 2014
Gordon Brown says the kidnapped Nigerian girls have been in captivity for 100 days, but the world has not forgotten them.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT