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The Supreme Court Fight Probably Won’t Define The Election For Voters

Since Justice Antonin Scalia’s death over the weekend, one of the big debates has been over how the fight to confirm a new Supreme Court justice will reshape the 2016 presidential election. Although some pundits and scholars have, fittingly, written elegant and well-argued pieces about how the election will become a referendum on the Supreme Court and the issues the court is likely to examine in the coming years (abortion, voting rights, campaign finance, state redistricting rules), the actual impact on voting of a protracted fight that fails to fill the Supreme Court vacancy may be marginal — at least in the general election (the primaries may be a different story).

For starters, research shows that the Supreme Court is a well-respected institution but not very important for most voters. The contemporary classic work on Americans’ political knowledge, “What Americans Know About Politics and Why It Matters,” reports that few citizens can name more than one Supreme Court justice. A 2012 survey found that two-thirds couldn’t even name one.1 So most people aren’t paying attention to the court.

Also, voting has become polarized and predictable — leaving few voters to be swayed by a fight over the court. Political scientists (and economists) have known for some time that the two-party vote can be predicted pretty accurately using the “fundamentals” — economic performance, whether the nation is at war, and the popularity and duration of the White House incumbent. The high levels of polarization in the electorate make persuasion difficult. Some of the contentious issues taken up by the court have cut across party lines in the past — immigration, campaign finance, even abortion. But this is increasingly uncommon in American politics. Party conflict defines disagreements about economic, racial and cultural issues. So, it’s unlikely that campaign messages about abortion, voting rights and affirmative action would change voters’ minds in November.

The Supreme Court fight might provide fodder for some dramatic campaign commercials, but their impact will probably be limited. Party labels tend to shape how people vote, and there’s mounting evidence that partisan attachments lead citizens to evaluate the same information — the economy, the government’s performance on foreign policy — differently. A 2014 study of whether citizens perceive court decisions as legitimate found that political ideology was an important factor shaping attitudes about the court. In other words, those who are paying attention to the Supreme Court are generally already set in their partisan attitudes.

It’s possible that a dramatic general election campaign contest over the court could indirectly contribute to turnout; committed partisans could be motivated to mobilize others, and there’s some evidence that competitive elections in a highly polarized political environment boost turnout. However, comparisons across different countries also show that people are more likely to vote when they can trace their vote choice to a clear outcome. This is sometimes used to explain the difference between turnout in presidential and midterm years: You cast a vote for president, and either that candidate becomes president or he or she doesn’t. You cast a vote for your member of Congress, but the real prize is majority control — which is not what voters see on the ballot. For voters who are less attentive to political details, something is lost in translation. And so it may be for the idea of voting in a presidential election to shape the Supreme Court. Those who are less politically engaged are less likely to follow or understand court politics. Voters who see the big picture have probably already made up their minds about how they’ll vote in 2016.

But this doesn’t mean that the upcoming battle over the court will be irrelevant to the election. If no one is confirmed as Scalia’s replacement, the Supreme Court and its issues will likely be a major part of the elite narrative.

What elections mean — whether they are really “referenda” — is really difficult to figure out. People vote for all sorts of reasons, and the evidence I cited above suggests that the main drivers are partisanship and retrospective evaluations of how well the country is doing.

This doesn’t stop elites — i.e., politicians, the media, activists — from making claims about mandates, though, and this is where the real impact of the Supreme Court discussion may emerge. My research on presidential mandate claims reveals that as politics has become more polarized and the different issue positions of the parties have become more clear, newly elected presidents have relied more on mandate rhetoric to justify their positions. These claims include language like “this is what voters demanded when they went to the polls in November”; “I said during my campaign that I would tackle this if elected, and you cast your votes for my solution”; and “I believe I was elected because of my position on taxes.” Since 1980, mandate rhetoric has outlined party priorities more than it did in the past. These references have usually been economic in nature. Ronald Reagan spoke about a mandate to attack the “inflationary monster,” George W. Bush talked about his campaign promises to reform Social Security, and President Obama referred in 2009 to the electorate’s rejection of Republican economic ideas. (In recent decades, Republican and Democratic presidents have gone about this differently, with Democrats emphasizing lots of small issues and Republicans sticking to a few major governing ideas.)

It’s unlikely that the partisan struggle over the next Supreme Court justice will end when the 45th president is inaugurated in January, whoever that is. If the election is contentious and competitive, as recent elections have been, the winner may be inclined to claim a mandate for his or her party’s priorities. These mandate claims may be part of the argument for the eventual court nominee. But even if elites understand the election as a referendum on the court, the results probably won’t resolve the underlying partisan divide.


  1. Taking an alternative view, James Gibson and Gregory Caldeira argue that name recall is a poor measure of such knowledge and find higher levels of knowledge about the role of the Supreme Court, rather than its members. Still, this tells us very little about the salience of the court in an election.

Julia Azari is an associate professor of political science at Marquette University. Her research interests include the American presidency, political parties and political rhetoric. She is the author of “Delivering the People’s Message: The Changing Politics of the Presidential Mandate.”