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When do the Supremes become a campaign issue?

Ezra Klein of the Washington Post has an interesting post today voicing some surprise at all the hullabaloo, in the run-up to the Supreme Court's big decision on healthcare reform, about the politicized court.

As an institution, the court is insulated from party politics, but the men and women who serve on it are increasingly selected through an intensely political process meant to insure that they don’t disappoint the party that promoted them. Both parties are trying to avoid nominating another David Souter, who had little paper trail and ended up disappointing his Republican sponsors by voting frequently with the court’s liberals. One way parties find judges they can trust is to pick people who have served the party loyally in the past. Chief Justice John Roberts worked for President Ronald Reagan; Justice Elena Kagan worked for President Obama...

Perhaps, as [Mother Jones reporter Kevin] Drum says, the Supreme Court will surprise us on this one. But if they don’t, I think the right question will be why so few in the legal academy saw it coming. If you think about the forces driving political polarization, and the process by which Supreme Court nominees are chosen, it’s easy to see how it might take some time for the Court to become a truly polarized institution — lifetime appointments mean the composition of the court doesn’t change very frequently — but it’s almost impossible to see how it avoids becoming a polarized institution eventually. What we may be finding out is that “eventually” happened a couple of years ago.

All this has me wondering, might the Supreme Court finally become a real campaign issue? For years, activists on the left and right have lamented their inability to break through to the average, half-tuned-in voter with this three-step: vote for X for president, he'll appoint Supreme Court justices, and everything from abortion to campaign finance will be effected.

Might a high-profile reversal of healthcare reform finally make the court a real issue in the presidential campaign - perhaps, even trickling down to Congressional races? It's tempting to say "yes." But a few caveats are in order here: 1) health care reform is pretty unpopular, so it's hard to see a major revolt against the court, 2) the details of the ruling - does the court overturn part of the law or the whole thing? - will play a role, 3) it's not at all clear that President Obama will see much advantage in making this a campaign issue - or that voters, preoccupied with the economy - would be all that receptive.

Still, if there's a chance for the Supremes to play a marquee role in a modern election cycle, this is it.

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