A chance to vote to get the unelected Supreme Court justices you want

Usborne in the USA

Back in 2012, President Barack Obama warned the “unelected” justices of the US Supreme Court against decreeing the Affordable Care Act, his top domestic achievement, unconstitutional and killing it off two years after its passage through Congress. They didn’t, and the White House gave thanks to the bench of nine, unelected or not.

Now, it’s the other side that is fulminating against the court. In the wake of two momentous decisions last week – saving Obamacare for a second time and ordering every state in the union to issue marriage licences to gays and lesbians – the lamentations from the right have been still more shrill. The new Obamacare ruling was an example of “five unelected judges saying their liberal policy views trump the considered judgment of 320 million Americans,” declared Senator Ted Cruz, who fancies himself the next president. “It was judicial activism at its worst.”

Astonishingly, American’s third arm of federal government, alongside the executive and Congress, even came under attack from inside its own walls. Infuriated by being on the losing side of the gay marriage ruling, Justice Antonin Scalia, appointed by Ronald Reagan in 1986, raged at his colleagues, branding the majority opinion a “judicial putsch,” that poses a “threat to American democracy”. As for it being representative of America, of the nine justices, eight “grew up in east- and west-coast States. Only one hails from the vast expanse in-between,” he noted. Not “a single evangelical Christian” sits among them.

Memo to Mr Cruz: polls show that a majority of the 320 Americans you speak of liked both of the court’s big rulings last week. Listen to you and others in the race for the Republican nomination next year and we might conclude that the democratic process in the US is more of a waste of time than ever. Why bother voting with this unelected cabal ruling the roost?

But the Supreme Court is entirely a product of voters’ choices. There is no more compelling reason for Americans to turn out in 2016 than the knowledge that it will be their one chance to influence the ideological balance of the court moving forward. The next president is likely to have the chance to replace at least one of the justices. The US Senate will then be asked to approve or reject that choice.

Worryingly, there are indications that Democrats may be feeling that cynicism more than Republicans. A new survey by pollster Stanley Greenberg, a former advisor to Bill Clinton, suggests that while 67 per cent of Republicans are champing at the bit to get one of their own into the White House next year and protect the Republican grip on the US Senate, only 52 per cent of Democrats are feeling the same way.

That enthusiasm gap risks getting wider still thanks to last week’s Supreme Court rulings. Conservative America is as livid as Messrs Scalia and Cruz are and will be galvanised to hit the polling stations in November next year like never before. They understand that for all the ranting on their side about an unelected Supreme Court, they do have the power to change it, if indirectly.

Democrats have reason today to celebrate. The progressive revolution they hoped for when President Obama was first elected is far from complete. The death penalty endures, gun control has hit a brick wall, abortion rights are being curbed. But gay marriage is now the national norm and Obamacare, extending health insurance to millions of previously uninsured Americans, is now part of the social safety net, almost certain now to outlive the Obama presidency.

Lose the White House and fail to regain control of the Senate next year and the Court that gave you those rulings you loved may soon disappear. So vote. To get the (unelected) justices you want.