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'Activist' US Supreme Court a key issue in 2016 polls

WASHINGTON • As activists celebrated on the steps of the Supreme Court building last week, political strategists for the more-than-a-dozen presidential campaigns were in their own sort of frenzy: How to respond to the landmark ruling that made the ban on same-sex marriage unconstitutional?

Across the crowded conservative field, the responses have been split. While none openly supported the ruling, the likes of former Florida governor Jeb Bush and Senator Lindsey Graham did at least accept it, encouraging Republicans to focus their efforts on ensuring religious freedoms were protected.

Said Mr Bush: "In a country as diverse as ours, good people who have opposing views should be able to live side by side. It is now crucial that, as a country, we protect religious freedom and the right of conscience, and not discriminate."

Others were far less reserved. Former Arkansas governor Mike Huckabee and Louisiana Governor Bobby Jindal issued strong condemnations of the verdict, stressing that Republicans must stand and fight the ruling.

Perhaps unsurprisingly, the most strident critic was Senator Ted Cruz - a firebrand who made his name forcing the government shutdown in 2013. He pledged, for instance, to make the same-sex marriage issue "front and centre" of his presidential campaign. Stressing that the nine Supreme Court justices had overstepped their bounds, he called for a framework that would allow for the removal of the life-long appointees.

The senator's strategy is notable, given that it has become almost conventional knowledge among conservative candidates that the same-sex marriage issue is a no-win area. Take too hard a stand against such unions and it will greatly hamper the candidate's appeal with independents and younger voters. A recent CNN/ORC poll found that 57 per cent of Americans agreed that same-sex couples had a constitutional right to marry.

Yet, if they come across as being too accepting of same-sex marriage, they may risk alienating the core conservative base. In fact, Republican strategists regard social issues as out of bounds for campaigns after some ill-advised comments about abortion ended in embarrassing defeats in 2012.

Most observers thus expect social issues to be a minor factor in next year's polls. The events of last week, however, may be changing calculations. Contentious social issues will still not be debated directly, but some clearly want to use them to raise the stakes. Both directly and indirectly, candidates like Mr Cruz and Mr Huckabee are trying to energise their base by sending the message that it is not just the Oval Office that is on the line when November 2016 rolls around, the Supreme Court is too.

The US Supreme Court is made up of nine justices who are nominated by the President and confirmed by the Senate. The justices hold on to their appointments for life and give up their seat only under a very limited set of circumstances, including death, retirement and impeachment. And while the ability of a president to pick justices has always been an issue, there are three reasons that elevate its importance at the next polls.

The first is simply the fact that that the current Bench is ageing and up to four could retire during the next president's term in office. Of the nine justices, four are currently above 75. Justice Stephen Breyer is 76, Justices Anthony Kennedy and Antonin Scalia are 79 this year, and Justice Ruth Bader Ginsburg is 82.

The next reason is the delicate ideological balance that exists on the Bench. Of the nine justices, five were chosen by Republican presidents and four by Democratic ones. While the nine do vote unanimously on a large number of decisions, splits are evident on political issues like Obamacare and same-sex marriage.

On the same-sex marriage ruling, the voting largely went according to party lines. Justice Kennedy - who was nominated by former president Ronald Reagan and is generally regarded as the ideological centre of the court - ended up casting the deciding vote. And given that justices serve on the Bench for decades, whichever party wins the White House next may have an influence on the balance of the Bench that lasts longer than any occupant of the White House.

None of the first two reasons would matter all that much if not for the activist role the Supreme Court seems to be taking of late. While the Supreme Court has been striking down laws created by Congress for years, it does seem to current voters that the Bench is inserting itself into critical policy issues at an unprecedented level.

Besides the same-sex marriage ruling, the Supreme Court has had a say on whether a key part of Obamacare was able to go on and how much money donors can give to a political campaign.

Justice Kennedy himself once said that an activist Supreme Court was undemocratic. "Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy," he said.

And, indeed, the theme of judicial activism emerged with a vengeance in the wake of last week's ruling. Rather than muddle through legal arguments over whether same-sex marriage was constitutional, Republican candidates simply stressed that the policy was one that should be decided by democratically elected legislatures, not an appointed Bench.

As Mr Huckabee put it: "I will not acquiesce to an imperial court any more than our founders acquiesced to an imperial British monarch. We must resist and reject judicial tyranny, not retreat."

Each of the four dissenting judges similarly invoked the argument that they were deciding something that should be left up to the legislature. Although justices only ever seem to bring this up when they are on the dissent, it does raise legitimate questions about whether matters of national policy should be decided by a court.

Whatever the opinion is on the role of the Supreme Court, it seems inevitable that it will play a part in the next election cycle. And that means divisive and emotional issues, such as same-sex marriage, will come into play too.

A version of this article appeared in the print edition of The Straits Times on July 02, 2015, with the headline ''Activist' US Supreme Court a key issue in 2016 polls'. Print Edition | Subscribe