Why Conservatives Care More About the Supreme Court
Liberals who wonder why they are poised to lose the battle for the Supreme Court have noticed an asymmetry in the politics of judicial confirmations. For at least a generation, conservatives have cared about the courts a lot more than they have.
You can see it in the exit polls from the presidential election of 2016. Voters who chose their candidate on the basis of judicial appointments broke heavily for Donald Trump over Hillary Clinton.
Or you can review the campaign rhetoric that year. Trump regularly said that appointing a conservative replacement for Justice Antonin Scalia, who had just died, was a top issue in the campaign. At the Democratic convention, by contrast, Clinton drove liberal legal activists to despair by not even mentioning that President Barack Obama had nominated a replacement, Judge Merrick Garland, and that Republicans had refused to consider his nomination.
The 2020 campaign started out replicating that difference in emphasis. Trump released list after list of potential Supreme Court nominees, while Joe Biden has rebuffed Trump’s challenge to do the same.
One theory we will probably hear to explain this pattern is that conservatives have been losing political support in the population as a whole, and therefore seek to use the courts to entrench their preferred policies. But conservatives have cared about the courts more than liberals in favorable political seasons and unfavorable ones. I suspect the real explanation lies in three related facts.
First, the politics of the judiciary is largely the politics of abortion — and the issue has consistently been a higher priority for opponents of it than for supporters.