Cornell W. Clayton

Still Crazy after All These Years: The Polarized Politics of the Roberts Court Continue

Abstract This article examines the Roberts Court and its relationship to the Obama administration following the 2014 midterm election. We begin by analyzing how the Court has been structured by electoral politics during the past 40 years, arguing that the Court’s more conservative, divided, and polarized decision-making reflects the politics of the post-1968 electoral regime. We then consider the impact of the 2014 midterm election. Republican control of the Senate will constrain the president’s ability to shape the federal courts going forward. It will most likely leave the composition of the current Supreme Court intact, leave Justice Kennedy as the pivotal swing vote, while elevating the Court as a campaign issue in the 2016 presidential election.

The Roberts Court in an Era of Polarized Politics

Abstract This essay examines the Roberts Court and its relationship to the Obama administration. It begins by analyzing the ways in which the Court has been structured by electoral politics over the past 40 years, arguing that the Court’s more conservative, divided, and polarized decision-making reflects the politics of the post-1968 electoral regime. It concludes by considering the impact of President Obama’s 2012 reelection, contending that there is little indication that Obama aspires to restructure the courts fundamentally or to push major new constitutional initiatives. Although Obama will undoubtedly have an opportunity to fill at least one seat on the Court in the coming years, he is unlikely to alter its ideological balance, leaving Justice Kennedy as the swing justice. Thus, while liberals can expect isolated judicial victories, Obama’s reelection does not portend an imminent shift in Court decision-making. Only time will tell, however, whether it will have longer-term consequences for American constitutional development.