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Where Romney and Obama Stand on the Supreme Court: A Guide

Posted on Oct 31, 2012
Flickr / Mike Renlund

By Suevon Lee, ProPublica

(Page 2)

In remarks to the Detroit Free Press, then-Sen. Obama said he would seek Supreme Court nominees who recognize “that one of the roles of the courts is to protect people who don’t have a voice,” for instance, “the vulnerable, the minority, the outcast, the person with the unpopular idea, the journalist who is shaking things up.”

That same year, Obama, who taught constitutional law at University of Chicago Law School, praised former Justice David Souter and current Justice Stephen Breyer — both considered liberal votes — as “very sensible judges.”

“They believe in fidelity to the text of the Constitution, but they also think you have to look at what is going on around you and not just ignore real life,” he said.

Obama has made clear he supports Roe v. Wade, which has been narrowed in the face of new challenges.


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In 2010, shortly after Justice John Paul Stevens announced his retirement, Obama told Senate lawmakers he’d apply no “litmus test” to potential nominees.

“But I will say that I want somebody who is going to be interpreting our Constitution in a way that takes into account individual rights, and that includes women’s rights,” the president said, eventually nominating Kagan for the vacancy.

In February 2011, Obama spoke out against the Defense of Marriage Act, which seeks to impose a definition of marriage as a legal union between a man and a woman, and instructed the Justice Department to stop defending the law in court. (A second federal appeals court recently struck down the law as unconstitutional; some predict the issue could next be headed to the Supreme Court.)

Although the president has been criticized for taking his time with judicial appointments in the lower federal courts — a gateway to the Supreme Court — he’s also named more ethnic minorities to the bench than any of his predecessors.

More Discussion?

So, why hasn’t there been more discussion about the Supreme Court on the campaign trail? It’s a question that’s been raised again and again, especially since justices, who are appointed for life, serve on average about 30 years.

One possible explanation is that the Supreme Court strategically took itself out of the political calculus earlier this year when it narrowly upheld the health care law.

“[The issue] would have played out a little differently if the Supreme Court had struck down the health care act,” SCOTUSBlog’s Goldstein said. “It’s really hard for the president to run against the Court that has just upheld his signature legislative achievement by a whisker.”

But the silence could also just convey a perceived lack of interest among the public.

“I think the candidates realize that the Supreme Court doesn’t move independent voters,” said Goldstein, even though “the president makes a radical difference in the composition of the judiciary.” 

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