Federal Courts and Nominations

To Win the Debate Over the Supreme Court, Talk About the Constitution

Tonight’s presidential debate will be the first time candidates Hillary Clinton and Donald Trump will be asked at length about the Supreme Court on a stage together. This is surprising, given that the future of the Supreme Court is unquestionably at stake in this election — not only is there a current vacant seat on the high court after the death of Antonin Scalia, there will possibly be two or three more vacancies given the age of several of the sitting Justices. The next president may well be able to shape the Supreme Court for a generation, yet we have had depressingly little detailed discussion of the Court.

We’ve had a preview of what each candidate will say: at the last presidential debate, when asked about the most important aspects of selecting a Supreme Court justice, Clinton emphasized that she wanted a justice with “real life experience” who “understands what people are up against.” Trump noted that he would look “to appoint judges very much in the mold of Justice Scalia,” who was a self-professed constitutional “originalist,” and wanted “people that will respect the Constitution of the United States.”

This difference reflects a common divergence between the right and left: when conservatives talk about the Supreme Court, they wrap themselves in our Founding charter; when progressives talk about the Supreme Court, they often talk about what is right and just, without expressly rooting those arguments in the text and history of the Constitution. This is a major missed opportunity for progressives.

A survey commissioned by the Constitutional Accountability Center shows that progressives consistently get a “Constitution bump” when they embrace the Constitution’s text and history in their arguments rather than the more traditionally liberal “living document” argument that suggests that judges must essentially re-write the Constitution to comport with modern times and experience. This text and history approach not only yields an advantage over conservatives on their preferred judicial philosophy of limited government power and narrow individual rights, but also produces a broader base of support among Americans for core progressive policies, such as the constitutionality of the Affordable Care Act and the equal protection argument in favor of marriage equality. It is important in this moment of a seemingly divided nation to note that rooting desired progressive Supreme Court outcomes in the text and history of the Constitution has crossover appeal, with liberal-to- moderate Republicans favoring it over the Scalia-type position.

Unfortunately, many progressives often fail to connect policy values in choosing judges directly to the values represented in the text and history of the U.S. Constitution. This can change — by laying claim to the most important document in our nation’s history and pointing to it as the North Star of America’s progressive values and goals, progressives can reach a broader audience.

How would a constitutional progressive answer an expected debate question about the Supreme Court on Wednesday? First, with a warm embrace of our founding charter’s text and history — our whole Constitution, including the amendments. Remind viewers that our Constitution is a fundamentally progressive document, improved over two centuries to expand liberty, equality, and justice for all — specifically for people of color and women, who were originally denied the promises made in our Declaration of Independence.

This would set up a clear contrast to a constitutional conservative’s answer, one embracing a concept of originalism frozen in the 18th Century. For decades conservatives have claimed the document first written in the steamy summer of 1787 as their own. Conservatives allege that the work of our founding fathers is a reflection of their own values of weak government, unregulated big business, and the unlimited right to bear arms.

Rarely, of course, do they credit founders like Alexander Hamilton, who fought and won battles with the weak-government conservatives of his day to craft a Constitution that established a strong president, Congress, and Supreme Court. And almost never do conservatives consider the profound changes that We the People made to the Constitution in later decades, particularly after the Civil War when the 13th, 14th and 15th Amendments were added to abolish slavery, protect the right to vote, and guarantee equal protection of the law to all persons in America. Not to mention the amendments from the Progressive and Civil Rights eras that sought to root out political corruption (17th Amendment) and ensure the inclusion of low-income Americans in our democracy (24th Amendment).

Support for Supreme Court rulings that would combat systemic racism, make our democracy more fair and inclusive, preserve the right to reproductive choice, and ensure a strong government capable of addressing national problems like climate change and health care reform? It’s in the arc of progress written into the text of our Constitution.

These are the values that any president should want his or her judges to uphold on the bench. They are American values. And on debate night, there is an opportunity to remind the country that they are the Constitution’s values as well.

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