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)
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
December 20, 2014 -- Updated 0242 GMT (1042 HKT)
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
December 20, 2014 -- Updated 0112 GMT (0912 HKT)
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
December 19, 2014 -- Updated 1709 GMT (0109 HKT)
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
December 18, 2014 -- Updated 2345 GMT (0745 HKT)
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
December 19, 2014 -- Updated 2134 GMT (0534 HKT)
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
December 18, 2014 -- Updated 1951 GMT (0351 HKT)
Jeff Yang says the film industry's surrender will have lasting implications.
December 18, 2014 -- Updated 2113 GMT (0513 HKT)
Newt Gingrich: No one should underestimate the historic importance of the collapse of American defenses in the Sony Pictures attack.
December 10, 2014 -- Updated 1255 GMT (2055 HKT)
Dean Obeidallah asks how the genuine Stephen Colbert will do, compared to "Stephen Colbert"
December 18, 2014 -- Updated 1734 GMT (0134 HKT)
Some GOP politicians want drug tests for welfare recipients; Eric Liu says bailed-out execs should get equal treatment
December 18, 2014 -- Updated 1342 GMT (2142 HKT)
Louis Perez: Obama introduced a long-absent element of lucidity into U.S. policy on Cuba.
December 16, 2014 -- Updated 1740 GMT (0140 HKT)
The slaughter of more than 130 children by the Pakistani Taliban may prove as pivotal to Pakistan's security policy as the 9/11 attacks were for the U.S., says Peter Bergen.
December 17, 2014 -- Updated 1600 GMT (0000 HKT)
The Internet is an online extension of our own neighborhoods. It's time for us to take their protection just as seriously, says Arun Vishwanath.
December 16, 2014 -- Updated 2154 GMT (0554 HKT)
Gayle Lemmon says we must speak out for the right of children to education -- and peace
December 17, 2014 -- Updated 1023 GMT (1823 HKT)
Russia's economic woes just seem to be getting worse. How will President Vladimir Putin respond? Frida Ghitis gives her take.
December 17, 2014 -- Updated 0639 GMT (1439 HKT)
Australia has generally seen itself as detached from the threat of terrorism. The hostage incident this week may change that, writes Max Barry.
December 12, 2014 -- Updated 2020 GMT (0420 HKT)
Thomas Maier says the trove of letters the Kennedy family has tried to guard from public view gives insight into the Kennedy legacy and the history of era.
December 15, 2014 -- Updated 1456 GMT (2256 HKT)
Will Congress reform the CIA? It's probably best not to expect much from Washington. This is not the 1970s, and the chances for substantive reform are not good.
December 15, 2014 -- Updated 2101 GMT (0501 HKT)
From superstorms to droughts, not a week goes by without a major disruption somewhere in the U.S. But with the right planning, natural disasters don't have to be devastating.
December 15, 2014 -- Updated 1453 GMT (2253 HKT)
Would you rather be sexy or smart? Carol Costello says she hates this dumb question.
December 14, 2014 -- Updated 2253 GMT (0653 HKT)
A story about Pope Francis allegedly saying animals can go to heaven went viral late last week. The problem is that it wasn't true. Heidi Schlumpf looks at the discussion.
December 14, 2014 -- Updated 1550 GMT (2350 HKT)
Democratic leaders should wake up to the reality that the party's path to electoral power runs through the streets, where part of the party's base has been marching for months, says Errol Louis
December 13, 2014 -- Updated 2123 GMT (0523 HKT)
David Gergen: John Brennan deserves a national salute for his efforts to put the report about the CIA in perspective
December 12, 2014 -- Updated 1426 GMT (2226 HKT)
Anwar Sanders says that in some ways, cops and protesters are on the same side
December 11, 2014 -- Updated 1439 GMT (2239 HKT)
A view by Samir Naji, a Yemeni who was accused of serving in Osama bin Laden's security detail and imprisoned for nearly 13 years without charge in Guantanamo Bay
December 14, 2014 -- Updated 1738 GMT (0138 HKT)
S.E. Cupp asks: How much reality do you really want in your escapist TV fare?
ADVERTISEMENT