This election season, don't panic about Supreme Court

The U.S. Supreme Court starts a new term on Oct. 3 during a presidential campaign with both candidates making dire predictions about what will happen if the other wins and can appoint justices.

Donald Trump and the Republicans say that if Hillary Clinton gets to make the appointments, the court will overrule Heller v. District of Columbia, and there no longer will be a Second Amendment right to “keep and bear arms.” Clinton and the Democrats say that if Trump gets to make the appointments, the court will overrule Roe v. Wade, and women no longer will have the right to a safe and legal abortion.

Based on our constitutional system and how the court has worked as an institution, the future is far less dire no matter who wins the election.

In the American constitutional system, the court’s function is to “say what the law is.” The court decides questions involving the Constitution, laws of the U.S. and workings of the federal government. But the court can decide these questions only when presented an actual “case or controversy” between two parties with adverse legal interests.

Only a party actually injured by a law, such the Michigan couple who successfully challenged Michigan’s ban on marriage for same-sex couples, or a woman needing an abortion when state law prohibited it or a homeowner who was prevented by a local ordinance from keeping a loaded handgun in the home, can bring a constitutional challenge to those laws.

Some laws may never be the subject of a constitutional challenge, because no one can show that he or she has been injured by the law.

While public attention focuses on high-profile, ideologically driven constitutional decisions of the court, constitutional cases, including many that aren’t controversial, make up only a third to a quarter of the cases. The greater part of the court’s work is interpreting and applying federal laws and deciding questions involving the workings of the federal government.

The court works as an institution and decides cases presented to it with reference to the doctrine and precedent that the court has promulgated over a long period of time. Individual justices operate within this institutional framework. Each justice has his or her own views about how the different provisions of the Constitution should be interpreted.

More significantly, the overwhelming number of cases, including some constitutional ones, see the court rendering unanimous or near-unanimous decisions. In the last term, of the 75 decided cases, 36 were unanimous, nine were 8-1 or 7-1, 19 were 6-3 or 6-2, and only 11 were decided by one or two votes. Typically, about one in five decisions are 5-4, not all are constitutional cases and the court doesn’t always divide on liberal-conservative lines.

While the court has the power to overrule its prior decisions, comparatively few decisions have been overruled. When a decision is overruled, it’s usually because it’s out of line with other decisions and there hasn’t been any societal reliance on that decision. The court doesn’t overrule decisions merely because its membership has changed. No matter who is appointed to the court by the next president, the court isn’t going to overrule Roe v. Wade or Heller because there is no basis for overruling either one.
This doesn’t mean the ideological views of the justices don’t make a difference, and the court’s ideological composition may change with new appointments.

That difference will be felt as future high-profile, ideologically driven cases come before the court.

Robert A. Sedler is a constitutional law professor at Wayne State University Law School.