Thursday evening, Sen. Bernie Sanders’ presidential campaign account tweeted out a promise that is likely to bring joy to anyone dismayed by the increasing flood of money seeking to influence American elections.
Any Supreme Court nominee of mine will make overturning Citizens United one of their first decisions.
— Bernie Sanders (@BernieSanders) January 22, 2016
The problem with this tweet, however, is that it betrays a serious misunderstanding of how the Supreme Court operates. Unlike a legislature, which is free to take up or ignore particular issues at their leisure, court cases must clear numerous procedural hoops before they are decided, and this is doubly true for the Supreme Court of the United States. In reality, it would be nearly impossible for Sanders’s nominee to ensure that any particular case was “one of their first decisions.”
Nor, apparently, can this tweet be explained as the lapse of whoever was running Sanders’s Twitter feed. Last November, Sanders himself told CNN that “no nominee of mine to the United States Supreme Court will get that job unless he or she is loud and clear that one of their first orders of business will be to overturn Citizens United.”
The two most significant limits on the justices’ ability to set their own schedule are laid out in Article III of the Constitution. That article limits the federal judiciary’s authority to “cases” or “controversies,” a requirement that has long been understood to require that there are two parties that have a genuine conflict with each other before a federal court may step in. It would not be hard to spark a controversy that would eventually allow the Supreme Court to reconsider Citizens United — most likely, some government agency would bring an enforcement action against a candidate, donor or outside group that allegedly violates the Court’s current precedents — but the justices would need to wait for such a case to arrive at their doorstep before they could step in. Additionally, the Constitution provides that the Supreme Court only has “appellate jurisdiction” over the overwhelming majority of cases. Thus, the justices cannot consider a matter until after it has been decided by some lower court.
Under normal circumstances, these limitations would probably delay resolution of a new case challenging Citizens United at least two years — and that’s assuming that one or more of the Court’s current Democratic appointees did not want to gradually chip away at Citizens United over the course of several cases, a common practice in the Supreme Court. It’s possible that the Court could accelerate their decision overruling it. But, even under the best of circumstances, such a decision would likely take many months. And the Court would not stop deciding other cases while the challenge to Citizens United was pending.
Of course, the fact that Sanders announced a substantive position on a major legal question is likely to be more important to voters than whether he understands the nuances of judicial procedure — as is the fact that Sanders feels so strongly about this particular question that he plans to only appoint justices who agree with him on this issue. (Sanders’s leading opponent for the Democratic nomination, Secretary Hillary Clinton, also has promised to appoint justices who will overrule Citizens United.) But a President Sanders’s ability to actually get the justices he wants on the Supreme Court could depend on whether he makes this issue a top priority.
As a practical matter, any Democrat who wins the presidency in 2016 is unlikely to accomplish much in the legislature. A combination of gerrymandering, voter suppression laws, built in geographic advantages for Republicans and similar factors will make it extraordinarily difficult for Democrats to retake a majority in the House even if they win the White House. Indeed, in 2012, President Obama won the national popular vote by nearly 4 points, Democratic House candidates received nearly 1.4 million more votes than Republican candidates, yet Republicans began the 113th Congress with a 33 seat advantage in the House.
Yet, while control of the House of Representatives is unlikely to change in the 2016 election, control of the Supreme Court very well could be decided this November. When the next president takes office, three justices will be over 80 years-old, and Justice Stephen Breyer will be not that far behind at 78. Notably, two of the octogenarian justices, Antonin Scalia and Anthony Kennedy, are Republicans that could potentially be replaced by a President Sanders.
Given the sheer number of vacancies likely to emerge in the next presidential term and the unlikeliness that at major legislation will move forward, the next president’s Supreme Court appointments will likely be their most important legacy — especially if that president replaces a justice appointed by a member of the other political party.
Although the threshold for confirming lower court judges is now 51 votes in the Senate, Supreme Court nominees still must overcome a potential filibuster that can only be broken with 60 votes. A Democratic majority might change this rule if a Democratic president’s Supreme Court nominee is filibustered, but there remain powerful interest groups within the Democratic coalition that oppose such a change. There’s also no guarantee that Democrats will enjoy a majority, or that relatively conservative Democrats within the Senate will support a particular nominee. A president with a sophisticated judicial nominations team who makes confirmations a high priority is more likely to sway reluctant members of his own party to support a particular nominee — or to back additional filibuster reforms if it comes to that. A president who places less emphasis on these issues is likely to have less influence.
There’s nearly a year between now and the presidential election, so Sanders has plenty of time to educate himself about how the Supreme Court functions if he becomes the Democratic nominee. The fact that no one in his campaign caught a fairly rudimentary error in his Citizens United tweet, however, does suggest that he is currently not making the judiciary a high priority. It also suggests that his priorities may not align with the actual leverage points that will be available to him if he becomes president.
A Sanders spokesperson responded to criticism of this tweet with a note to Mother Jones's Pema Levy: "That tweet was worded oddly. The senator often speaks about appointing justices that believe in overturning citizens united and who would do so if the opportunity arose. That is what this was referring to."