The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The future of the U.S. Supreme Court should be a significant issue in the 2016 presidential election. By the time the next president is inaugurated, three of the court's justices (Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg) will be octogenarians, and a fourth (Stephen Breyer) will be 78. For reference, the average age at which justices retire is 78.7. So whoever next sits in the Oval Office is likely to have a substantial effect on the court.
Despite the court's importance, few candidates say very much about it beyond simple platitudes. Republican candidates pledge not to appoint "activists," and former secretary of state Hillary Clinton apparently pledged to pick justices who would commit to overturning Citizens United. Few, however, get into much detail (perhaps because few of the candidates know enough about the subject to speak about it in more depth).
One candidate who definitely knows quite a bit about the Supreme Court is Sen. Ted Cruz (R-Tex.). He clerked on the court (for Chief Justice William Rehnquist) and has argued cases before it. He also spoke at length with Sahil Kapur of Bloomberg about the court in a recent interview, and it's worth a read.
During the interview, Cruz repeats his criticism of past Republican judicial nominees and pledges to do better at identifying and nominating "rock-ribbed" conservative jurists and investing the political capital necessary to see them confirmed.
His goal? To match Democrats' "nearly perfect record" of picking justices who vote reliably with their movement. "The Republicans have an abysmal record. We bat about .500," he said. "About half of the nominees Republicans have put on the court have not just occasionally disappointed but have turned into absolute disasters."
As examples he cited Justices William Brennan, Earl Warren, John Paul Stevens, David Souter, and Harry Blackmun. All were appointed by Republican presidents and sided with liberal justices on some important issues; Warren and Stevens went on to become leaders of the court's liberal wing.
. . . the accomplished Supreme Court litigator and former Texas solicitor general said he'd only settle for "rock-ribbed conservatives" who have "a long paper trail as principled conservative jurists." His ideal contender would be someone who has refused to bow to pressure, rather than a "stealth candidate" without a demonstrable conservative record.
Cruz cited Souter and Roberts (whom Cruz praised at the time he was appointed, an appointment Cruz has since called a mistake) as examples of "stealth" Republican-selected nominees without a proven conservative record. . . .
As examples of principled conservative justices he'd model his nominees after, Cruz cited Scalia, Clarence Thomas, William Rehnquist, and Samuel Alito.
Over the course of the interview, Cruz reveals himself to be more concerned about the court's decisions that expand federal power than those that allow government to constrain economic liberty. He tells Kapur that both Wickard v. Filburn and Lochner v. New York were wrongly decided. He feels the same way about Obergefell v. Hodges.
And then there's this:
Before ending the interview, Bloomberg Politics asked Cruz if he'd accept a hypothetical nomination to the Supreme Court by a future president.
He paused for three seconds, revealing a sense of intrigue behind his smile.
"One step at a time," he said. "Time will tell if I'm in a position to assess that offer."