Skip to main content
Part of complete coverage on
 

Why are candidates silent on Supreme Court?

By Jeffrey Toobin, CNN Senior Legal Analyst
September 28, 2012 -- Updated 1631 GMT (0031 HKT)
Justice Samuel A. Alito Jr. was appointed by President George W. Bush in 2006 and is known as one of the most conservative justices to serve on the court in modern times. Justice Samuel A. Alito Jr. was appointed by President George W. Bush in 2006 and is known as one of the most conservative justices to serve on the court in modern times.
HIDE CAPTION
Samuel A. Alito Jr.
Today's Supreme Court
John G. Roberts
Antonin Scalia
Anthony M. Kennedy
Clarence Thomas
Ruth Bader Ginsburg
Stephen G. Breyer
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
November 21, 2014 -- Updated 1925 GMT (0325 HKT)
Maria Cardona says Republicans should appreciate President Obama's executive action on immigration.
November 21, 2014 -- Updated 1244 GMT (2044 HKT)
Van Jones says the Hunger Games is a more sweeping critique of wealth inequality than Elizabeth Warren's speech.
November 20, 2014 -- Updated 2329 GMT (0729 HKT)
obama immigration
David Gergen: It's deeply troubling to grant legal safe haven to unauthorized immigrants by executive order.
November 21, 2014 -- Updated 0134 GMT (0934 HKT)
Charles Kaiser recalls a four-hour lunch that offered insight into the famed director's genius.
November 20, 2014 -- Updated 2012 GMT (0412 HKT)
The plan by President Obama to provide legal status to millions of undocumented adults living in the U.S. leaves Republicans in a political quandary.
November 21, 2014 -- Updated 0313 GMT (1113 HKT)
Despite criticism from those on the right, Obama's expected immigration plans won't make much difference to deportation numbers, says Ruben Navarette.
November 21, 2014 -- Updated 0121 GMT (0921 HKT)
As new information and accusers against Bill Cosby are brought to light, we are reminded of an unshakable feature of American life: rape culture.
November 20, 2014 -- Updated 2256 GMT (0656 HKT)
When black people protest against police violence in Ferguson, Missouri, they're thought of as a "mob."
November 19, 2014 -- Updated 2011 GMT (0411 HKT)
Lost in much of the coverage of ISIS brutality is how successful the group has been at attracting other groups, says Peter Bergen.
November 19, 2014 -- Updated 1345 GMT (2145 HKT)
Do recent developments mean that full legalization of pot is inevitable? Not necessarily, but one would hope so, says Jeffrey Miron.
November 19, 2014 -- Updated 1319 GMT (2119 HKT)
We don't know what Bill Cosby did or did not do, but these allegations should not be easily dismissed, says Leslie Morgan Steiner.
November 19, 2014 -- Updated 1519 GMT (2319 HKT)
Does Palestinian leader Mahmoud Abbas have the influence to bring stability to Jerusalem?
November 19, 2014 -- Updated 1759 GMT (0159 HKT)
Even though there are far fewer people being stopped, does continued use of "broken windows" strategy mean minorities are still the target of undue police enforcement?
November 18, 2014 -- Updated 0258 GMT (1058 HKT)
The truth is, we ran away from the best progressive persuasion voice in our times because the ghost of our country's original sin still haunts us, writes Cornell Belcher.
November 18, 2014 -- Updated 2141 GMT (0541 HKT)
Children living in the Syrian city of Aleppo watch the sky. Not for signs of winter's approach, although the cold winds are already blowing, but for barrel bombs.
November 17, 2014 -- Updated 1321 GMT (2121 HKT)
We're stuck in a kind of Middle East Bermuda Triangle where messy outcomes are more likely than neat solutions, says Aaron David Miller.
November 17, 2014 -- Updated 1216 GMT (2016 HKT)
In the midst of the fight against Islamist rebels seeking to turn the clock back, a Kurdish region in Syria has approved a law ordering equality for women. Take that, ISIS!
November 17, 2014 -- Updated 0407 GMT (1207 HKT)
Ruben Navarrette says President Obama would be justified in acting on his own to limit deportations
ADVERTISEMENT