Presidency is About Much More Than the Future of the Supreme Court

This story was originally published in The Hill on August 29, 2016.

After mostly ignoring the Supreme Court for the past four years, we are once again engaged in the quadrennial exercise of pretending its members are the most important issue in the presidential election. Desperate to rationalize their increasingly unprincipled support for the Republican nominee, conservatives have taken a leading role in spreading the idea that nothing is more important than the Supreme Court. This is nonsense. While certainly significant, the Court only touches on a narrow band of matters among all those within the public sphere (and only a small slice of possible issues, at that). The United States Presidency—the most powerful position in the country, indeed in the world—is not all about appointing justices to the Supreme Court.

A recent spate of articles and pronouncements by self-serious conservative commentators have insisted that the Supreme Court is the determinative body on every policy issue in American life. Reality is quite different, though. The president has the power to conduct military strikes and order troop deployments, set the domestic policy agenda, sign legislation into law, veto bills passed by Congress he or she disagrees with, direct the nation’s foreign policy and diplomatic goals, and staff the leadership of executive branch and independent agencies, and in doing so chart—directly or indirectly—the direction of governmental bodies with incredible power over all areas of public life, from the Justice Department to the CIA to the Federal Reserve. The Supreme Court can do none of this.

Instead, the Supreme Court hears an ever-shrinking docket of fewer than 100 cases per year (the Court decided 94 in OT 2015, only 82 of which were made following oral argument), most of which touch on unquestionably judicial matters. The Court spends a large part of its time providing the final interpretative say on matters of federal jurisdiction, the federal rules of evidence and of civil and criminal procedure, and the strictures of the federal sentencing guidelines. The vast majority of the Court’s business is in interpreting federal statutes, such as this term’s work in addressing ambiguities in the Prison Litigation Reform Act of 1995, the Fair Debt Collection Practices Act, and the Federal Tort Claims Act. Even rulings on controversial, hot-button issues such as the recent decision striking down President Obama’s deferred action plans for certain categories of illegal immigrants was a decision about whether the president’s executive order was consistent with a prior statute passed by Congress—the always sexy Administrative Procedures Act. All of this work simply interprets actions that have already been taken by Congress. And Congress can reverse any such decision by amending the law or rule at issue. The judiciary is reactive, not proactive.

Constitutional questions are the only ones the Supreme Court truly has a final say on, and even those pronouncements are restrained by the Court’s limited role in our constitutional system. The judiciary cannot render so-called “advisory opinions” on any issue of constitutional law it sees fit. Rather, under Article III of the Constitution, the Court can only consider a “case or controversy” requiring constitutional interpretation. Even then, the justices strive to resolve the disputes before them narrowly, without resort to broad pronouncements of constitutional law. Even with an increasingly political Court, the justices have mostly adhered to their own doctrines preventing them from opining on “political questions” or interfering with foreign policy.

The idea that every issue will end up at the Supreme Court is not borne out by experience. Among the many consequential decisions of the Obama administration, the Supreme Court had nothing to do with the Stimulus, the auto bailout, the Iran nuclear deal, the Paris climate change accords, the intervention in Libya, or the killing of Osama Bin Laden.

Let’s call these arguments for what they really are: a transparent attempt to defend the indefensible. Donald Trump would be a disastrous President in a myriad of unprecedented ways. He has a hair trigger in a world with infinite provocations. He threatens to upend the post-war security regime that has thus far averted world war. And his explicitly racist policies on immigration, law enforcement, and combating foreign terrorism threaten domestic unrest and foreign upheaval. The only way to brush aside such profound threats to our national security and tranquility is to elevate the importance of something else. The Supreme Court is an incredibly important institution in our democracy. But it is far from the most important. It is disingenuous to suggest otherwise.

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