The Forgotten Issue? The Supreme Court and the 2016 Presidential Campaign

43 Pages Posted: 28 Aug 2018

See all articles by Christopher W. Schmidt

Christopher W. Schmidt

Chicago-Kent College of Law; American Bar Foundation

Date Written: August 17, 2018


This Article considers how presidential candidates use the Supreme Court as an issue in their election campaigns. I focus in particular on 2016, but I try to make sense of this extraordinary election by placing it in the context of presidential elections over the past century. In the presidential election of 2016, circumstances seemed perfectly aligned to force the Supreme Court to the front of public debate, but neither Donald Trump nor Hillary Clinton treated the Court as a central issue of their campaigns. Trump rarely went beyond a brief mention of the Court in his campaign speeches; Clinton basically avoided the issue as much as possible throughout the general election. The candidates’ relative lack of attention to the Court can partly be explained by factors unique to the 2016 campaign. Yet historically the Court has rarely been a major concern for presidential candidates. It was not until the 1960s that major-party presi-dential candidates even considered the Supreme Court as an issue appropri-ate for presidential campaigns, and since then candidates have been reluctant to press future appointments to the Court as a centerpiece of their election efforts. The 2016 campaign, for all its precedent-shattering and unpredictable qualities, basically fell into a predictable dynamic when it came to the candidates’ treatment of the Court.

Keywords: Supreme Court, Presidential Campaigns, Appointments, Trump, Clinton

Suggested Citation

Schmidt, Christopher W., The Forgotten Issue? The Supreme Court and the 2016 Presidential Campaign (August 17, 2018). Chicago-Kent Law Review, Vol. 93, 2018, Available at SSRN:

Christopher W. Schmidt (Contact Author)

Chicago-Kent College of Law ( email )

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American Bar Foundation ( email )

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