Federal Courts and Nominations

The president, the Constitution and the Supreme Court

As we celebrate Constitution Day in the middle of a pitched election fight with deep consequences for the country, there is no better time to think about the president and the Constitution. While our Founders created three co-equal branches of government in a system of checks and balances, the person who holds the office of president is the single most recognizable, individual protagonist at any moment in our nation’s constitutional story.

The president is the lightning rod for our constitutional hopes, dreams and criticisms. No doubt many Americans across the ideological spectrum have at one time or another grown frustrated with those who hold — or seek to hold — the office of president, and have echoed the cry of frustration we heard over the summer from Gold Star parent Khizr Khan: “Have you even read the United States Constitution?”

To read the Constitution is to read a story of progress and promise. The 18th century Constitution was written by revolutionaries who ushered in an unprecedented system of self-government — America’s birth begins with a thunderclap of democratic sentiment and love of liberty, creating an enduring constitutional republic.

But these revolutionaries also had the wisdom to know that they were just beginning the story — and thus were sure to write Article V, which provides a mechanism for amending the Constitution. And We the People have done just that: Successive generations have amended the Constitution to remove the stain of slavery from our Founding document and instead enshrine equal citizenship for Americans, regardless of color, creed, class or gender; declare that all persons, immigrant or citizen, are entitled to the equal protection of the laws and due process; and require that states as well as the federal government respect fundamental rights, including the freedom to worship as one pleases (or not at all), the right to impartial and equal justice in our courts and the liberty to live, love and learn free from discrimination.

Any president, of any political party, should be faithful to this constitutional text and history, and embody the values expressed in our Constitution’s arc of progress. Our Constitution needs the country’s leaders to make sure that its promises are not merely promissory notes that can’t be cashed, to invoke the powerful words of Dr. Martin Luther King Jr.

For example, the Reconstruction Amendments — the 13th, 14th and 15th amendments — officially banished all badges and incidents of slavery and guaranteed equality to African Americans, including the right to vote free from discrimination. But it took nearly a hundred years of blood, sweat and struggle in the civil rights movement to make these constitutional promises more of a reality. Crucial pieces of civil rights legislation, signed into law by President Lyndon B. Johnson, went a long way to end segregation, economic racism, housing discrimination and voter suppression, but we still have much more work to do to ensure that the birthright of equality and liberty declared at our founding is a reality for all.

Any president, at any time in history, is crucial to this constitutional narrative because of his or her ability to work with the legislative branch to pass laws that enforce our constitutional guarantees and take care that those laws are faithfully executed. But this particular presidential election may be especially important because of the impact the next president is likely to have on the Supreme Court.

With several of the high court’s justices likely to retire over the next four to eight years, whomever the nation elects in November will have the power to profoundly shape the composition of the Supreme Court, with consequences that will far outlast that president’s term.

Will justices be nominated who are faithful to the Constitution’s text, history and values? A look back at the most recent few Supreme Court terms tells us what is at stake:

  • Whether the federal government will have the power to provide national solutions to national problems such as climate change and health care reform.
  • Whether women can exercise their constitutional right to determine for themselves whether or not to have an abortion.
  • Whether the executive power to ensure our immigration system is both compassionate and efficient is respected.
  • Whether the reality of racism in America — during a police stop, in the classroom, at the voting booth or in the courtroom — is addressed as a systematic problem or instead reduced to platitudes about stopping discrimination simply by wishing it away.

The judges nominated by the next president will be a key reflection of that president’s vision of the Constitution. (Of course, the third branch of government needs to play its constitutional role too — hopefully, the current unprecedented and irresponsible blockade by Senate Republicans of President Obama’s Supreme Court nominee, Chief Judge Merrick Garland, will not be a recurring theme in our constitutional narrative.)

Given all that is at stake, let’s give extra attention this Constitution Day to our national charter and ask all the candidates and our fellow voters Mr. Khan’s question: Have you read our inspiring Constitution lately, cover to cover? Like him, I will gladly lend you my copy.

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