When I was in high school, I became aware that the Republicans had made a conscious decision to weaponize the courts: They were angry when the Constitution kept telling them that their legislative agenda wasn’t legal. In 1968, Nixon dusted off an old term (“strict constructionist”) and they began crafting a new theory of law around it. It claimed to be all about applying a strict reading to the Constitution; to do nothing except read literally what was on the page and apply it in the most literal way possible.
And if that’s what strict constructionism actually was, I’d be all for it. But, of course, it isn’t. “Strict constructionism” is a code word for “conservative activism”. If it was actually about a strict reading of the Constitution, then, to pick just one example, its practitioners wouldn’t have so much difficulty finding the 14th Amendment in their copies. “Equal protection of the laws,” after all, is a pretty cut-and-dry statement.
This ideology of conservative activism got a huge boost in the ’70s when the Court found a “right to privacy” in the Constitution which, if applied logically, would allow them to overturn any law they felt like at their whim. It gave the “strict constructionist” movement the red meat it needed.
Since that point, the unabashed goal of the Republican party has been to stack the Court with conservative activists. And, by and large, the progressives in America have let them do it. I still have friends who talk proudly about voting for Nader in 2000. Many of them were complicit in Trump becoming President, by either staying home or by voting for a third party candidate. And it’s not just Presidential votes, either: Apathetic progressives have repeatedly handed Republicans congressional control. The result is that only three out of twenty judges in the last 50 years have been appointed by a Democrat with a Democratic congress.
So for about twenty years I’ve watched this slow motion trainwreck happening. And now that it’s finally arrived, it’s actually worse than anything I imagined when I was eighteen. Because it’s not just a matter of reversing what the “liberal” court had achieved. It extends beyond that. Kennedy’s replacement will lock in for at least 15-20 years a conservative majority which has already demonstrated that it will:
- Prevent any form of election reform.
- Go further than that, and explicitly allow Republicans to rig the electoral system.
- Go even further than that, and allow Republicans to pass laws dismantling non-Republican political organizations.
And, yes, this conservative court will also dismantle any form of public healthcare, roll back the rights of anyone who isn’t a white, straight, Christian male, and do far more damage besides. But it is this fundamental, anti-democratic core of the new Republican ideology — an anti-democractic agenda which will now be ruthlessly enforced by the Supreme Court — which is the death knell of America.
We need to show up in 2018 and we need to show up in 2020 even more. And not just at the national level: Progressives need to win at the state level in a census year to undo a lot of the damage the Republicans have done over the last decade; and they need to continue winning at the state level consistently for many years to come to make it stick. But the truth is it may already be too late: The Republicans have waged a fifty year campaign to take the keys to the kingdom. Over the last decade, they’ve been working hard to rig the system. And now that they have the Supreme Court, they will use it to lock that rigging into place.
I appreciate your passion and I’ll be right there with you at the polls, but try to keep your tone proactive. You’re shooting yourself in the foot with that dripping defeatist tone. I’m not saying your tone is unwarranted, but if the goal of your post is to inspire people to get active, then it undermines your goal. You are guaranteed to inspire fewer people with that language.
And also–remain optimistic! I’ve watched apathetic friends and family COMPLETELY transform since 2016. It’s not over til it’s over! \m/
If progressives ever show up for three national elections in a row, I’ll get optimistic.
The blue wave is coming, Alexandria cortez is a day of hope in the darkness
With all due respect my friend, doesn’t this seem a bit unlikely. The Republican party is first of all, not at all anti-Democratic. As of 2016, this is a party that has rejected much of the moral issues that held it back for so long and has become a pro-worker party by embracing the white working class of the Heartland. Furthermore, most of these people are formerly blue-dog and union Democrats, not far-right hayseed Evangelicals.
Secondly, the Republicans are currently headed by what is essentially a Manhattan Business Democrat wearing a red trucker hat. Trump isn’t going to stack the court with far-right radicals, he knows that will make progressives turn out in force. He’ll likely appoint someone center-right, a milk toast republican at best.
You need not worry about Trump weaponzing the court. He’s not going to do it, there is no evidence that he plans to nor any strategic gain from doing so.
It’s a particular kind of denial of reality to claim that Trump isn’t going to do things which he has already done.
This is a rather one-sided reading of the history of the Supreme Court. For one, the right to privacy comes from Roe v Wade, hardly a red-meat conservative decision. For two, every swing justice who’s served this century was appointed by a Republican – Kennedy(whose departure is so lamented), Roberts(who saved Obamacare), Souter and Stevens(who tried to give the 2000 election to Gore), and so on. Conversely, every Democrat-nominated judge in the last half-century is a staunch leftist on the Court – it’s not often Ginsburg or Kagan is the swing vote, after all.
Also, you say only three of the 20 judges in the last 50 years have been nominated by Democrat Presidents with a Democrat Senate. The actual count is 4/17(Ginsburg, Breyer, Sotomayor, and Kagan), with 5/17 being pure GOP nominees(Gorsuch, Alito, Roberts, Scalia, and O’Connor), and 8/17 being split-government nominees(Thomas, Souter, Kennedy, Stevens, Rehnquist, Powell, Blackmun, and Burger). 3/20 is a very different ratio than 4/9 single-party nominees.
Remember also that the fights over nominees stem back to the nomination of Robert Bork. Bork’s not my favourite guy in the world, but his nomination was political in a way that they simply hadn’t been before, and that seems to have been what opened the floodgates. That was the Democrats’ doing. If we’re pointing fingers, at least part of the blame has to go there. Likewise, Obama was the first one to go nuclear on judicial nominations(rather stupidly, too – for a couple district court spots, really?), which was the process that got Gorsuch approved so fast.
Finally, your list of potential catastrophes is a bit hard to credit. Electoral reform would, in all likelihood, require a Constitutional amendment – several past amendments(12, 17, 22, and 23 in particular) have dealt with that, and any large reform I can imagine would require one. The Supreme Court plays no part in the amendment process. Explicit rigging of the electoral system and destruction of non-Republican political groups would basically be full-on dictatorship. I know you don’t like the Clarence Thomases of the world, but I don’t think we have much reason to believe they’d actually do that. Kennedy has worked with these people for decades – if they were all secret fascists, and poor old Anthony was the only thing saving us from literal Hitler, he wouldn’t have resigned. Likewise, rolling back public healthcare ignores the fact that Roberts is the one who saved Obamacare from its own incompetent drafting, and even your solution of trying to win in a census year to undo gerrymandering won’t help much given that the Senate is inherently immune to gerrymandering, and it’s the Senate that confirms judges.
I love your D&D posts, but this could benefit from some of your analytical approach too.
That said, Yami, remember that Trump already has one nominee on the Court. Gorsuch is no “milk toast Republican” – he’s solidly rightist, and there’s good reason to assume Trump’s second nominee will also be similar. I agree with you about Trump’s personality(he’s no ideologue, because “support people whose last name is Trump” isn’t an ideology), but we have a track record on nominees to look back at. We’re almost certainly not getting another Kennedy.
Unfortunately, it’s difficult to be optimistic. Democrats, especially politicians typically come in two flavors: the corrupt ones that take money from the same people as republicans (the “blue dogs”and Joe Liebermens of the democratic party) and the ones that actually there to vote for popular values.
Historically, this means they’ll talk a big game right before capitulating with the republicans, either because the blue dogs would deny their votes unless democrats voted with the middle~center-right or the democrats would be overall too limp-wristed to put up any resistance to republican policies.
The perfect microcosm for all of this can be seen in the fight to create Obamacare, where the popular left position is “universal healthcare” and the senate democrats, with a super-majority, threw out even the “public option” of a healthcare marketplace that itself is a very right-wing idea cracked by the heritage foundation.
At the time, Democrats had more control of government than republicans do now.
I’m hoping the Bernie Sanders aligned wing of the democratic party starts to reverse this and put energy into a long comatose voting block, but the establishment democrats are fighting this change as much as possible and the democratic voting block has a long history of apathy.
So, I think there’s reason to be hopeful and reason to be nihilistic.
Justin, you are the best RPG theorist I know of, but your political history is lacking. I agree that Democrats need to show up and vote, but your view of the Supreme Court is far from the facts.
First, what you describe actually happened in the 30s not the 70s. The Supreme Court kept telling FDR that his legislative agenda (the “New Deal”) wasn’t legal. In response he threatened to pack the Court and the justices eventually capitulated. In the 50s and 60s, the Warren Court made a sequence of liberal rulings (desegregation, but also Gideon v Wainright and Miranda v Arizona) and the Burger Court of the 70s and 80s which mostly continued the trend. In particular, the “right to privacy” was discovered in the Constitution by the liberals in Roe v Wade.
The first conservative legal response to what they perceived as the “excesses” of the Warren Court was the theory of “judicial minimalism” or “deference to the political branches” — originally an approach championed by FDR’s progressives. The idea was that the legislature and the executive are elected branches so they have more political legitimacy and that Courts should only rule against the other branches in extreme cases. This is the approach championed by Bork, for example.
Later, most starting in the 80s, and having is dominance today primarily due to Justice Scalia, came textualism and originalism — the insistence that laws (and the Constitution) should be interpreted according to their text rather than according to their purpose as subjectively viewed by the judge, and that the meaning of laws and the Constitution is fixed when they are enacted rather than evolving in time. These views in particular stand in opposition to the “right to privacy” of Roe v Wade, which is not rooted in the text of the Constitution but is supposed to be implicitly included.
In particular, Conservatives have never used the “right to privacy” to invalidate liberal laws — rather the liberals (with Kennedy) have used it to invalidate laws restricting abortion. Conservatives generally argue that there is no “right to privacy”. Conservatives on the Court have invalidated Federal and State laws, but through other doctrines.
RE: “this conservative court will also dismantle any form of public healthcare”
I just want to note that if this were the case, it would have already happened back in 2012. Remember that it was Judge Roberts who was the surprise 5th vote in favor of the individual mandate’s constitutionality, not Judge Kennedy.
I really appreciate your gaming advice.
@Lior: I’m honestly at a loss as to what part of what you wrote you feel contradicts what I said. In several places you appear to be under the impression that I said the exact opposite of what I actually said.
@Maximilian: The Supreme Court is not what it was in 2012. By next year, it will be even less so.
I’m not the only one who noticed this but when the Supreme Court came down on the side of legalizing gay marriage there was very little in the way of celebration. It was more, “oh, it was about time” and people went on with their lives. There was an expectation of progress. And if gays and women keeping their rights hinged on a single man retiring, there was an underlying problem with the system.
Most of us live in comfortable times. People who went through the last round of social change in the 1960s are either retiring now or are dead. Right-wing extremists actually think they’re “punk rock” now because progressive notions of equality are mainstream. It might very well take the GOP and the Supreme Court putting the screws to the apathetic and the third-party-voters to spur some sort of momentum.
If the Democrats re-take Congress and the White House, they will need to pack the Supreme Court with three more justices. It’s completely Constitutional and more honorable than McConnell’s parliamentary long-game tricks. At the end of the day, Congress needs to take back power from both the Judicial and Executive branches and start acting like the people who control the purse strings.
Leftists need to vote in every primary election not just the regular election. If their preferred candidate loses, they still need to vote for the least evil candidate. That’s the message that needs to be drilled into their heads because I’m well aware that there are people who STILL think that voting third-party in a first-past-the-post election system is a winning strategy.
Justin: The five judges who voted to support Obamacare are all still on the Court, and will continue to be for the foreseeable future.
Support for the individual mandate is not full support for the ACA. National Federation of Independent Business v. Sebelius was a fragmented decision. While Roberts formed a majority with Ginsburg, Breyer, Sotomayor, and Kagan in upholding the individual mandate, he did not agree with their reason for doing so.
More importantly, by simultaneously creating a majority for dismantling the Medicaid expansion, Roberts crippled the ACA.
Anyone reading Roberts’ opinion in the case who concludes that he’s going to support common sense healthcare reform going forward has badly misunderstood his legal argument. He very narrowly supported Congress’ right to tax.
(And the claim that Ginsburg and Breyer are going to be on the court “for the foreseeable future” is actuarially unsound.)
Let me explain.
No, there is too much. Let me sum up.
But, first: Trump’s an evil orange buffoon.
Now, with that context appropriately established…
For most people (on the left and on the right), constitutional law is just the continuation of politics by other means.
Very few people (on the left or on the right) can think of even a few Supreme Court cases that they think were wrongly decided even though they like the result or that they think were correctly decided even though they dislike the result.
Most people (on the left and on the right) in fact find it almost inconceivable that a Supreme Court case should ever have results they don’t like.
But the reality beyond the politics is that some things many people despise (on the left and on the right) are constitutional and that some things many people think are essential (on the left and on the right) are unconstitutional.
That’s very true, Christopher. Virtually none of my liberal friends can wrap their head around the fact that I’m pro-choice but also think Roe v. Wade wasn’t a good legal decision.
Justin: Props to you for making that distinction. A lot of people miss it, and the result is turning law into another form of politics. Law is law – if you don’t like it, get the legislature to change it, not the judiciary. If the judiciary rules a law to be unconstitutional, and you still want it, then change the Constitution.
First of I must say I enjoy reading your posts on GM advice greatly!
But I must also object to your gloomy view of the political future of the US, being a Swede and therefore an outsider looking in I see for the first time in the twenty years I’ve been interested in politics an opening for something else than status quo, business as usual politics and I’m following it with great excitement! Let me explain:
In Sweden our political map is so much further left that the party that is furthest to the right in Sweden is still “more liberal” in your terms than both Democrats and Republicans (that said it’s not really the socialism your pundits often claim it is either). But it makes a lot of the political debate in the US seem wierd to europeans and especially Swedes. The right to choose if you want to have children or the right of the state to kill it’s citizens is not questioned, it’s almost not even debated in school for fun because the thought that abortions would not be legal or that Sweden would reintroduce capital punishment is so absurd. That you can even compare ACA to the public healthcare we have fought for and enjoy in most parts of Europe is also seen as a bit wierd here. Your foreign policy, which makes the US almost universally despised anywhere you go in the world, has been the same since a long as I can remember, it didn’t change during 8 years of Obama and wouldn’t have changed if Hillary had won. How you can really even call yourself a democracy, let alone the greatest democracy on the planet, when a fairly large portion of your adult population are not allowed to vote and general turnout in elections can be as low as 25-30% is puzzling to us.
But the fact that Bernie Sanders, a social democrat, most likely would have become president if the democratic establishment would’ve let him, the fact that Alexandra Cortez just won nomination for congress and numerous other progressive people are on the verge of breaking through the democratic establishment is a very welcome and exciting development and something that might in the end actually change american society in it’s foundation, whereas a win for Hillary wouldn’t really have changed anything in my eyes.
https://jacobinmag.com/2018/07/bernie-sanders-interview-alexandria-ocasio-cortez
“Secondly, the Republicans are currently headed by what is essentially a Manhattan Business Democrat wearing a red trucker hat. Trump isn’t going to stack the court with far-right radicals, he knows that will make progressives turn out in force. He’ll likely appoint someone center-right, a milk toast republican at best.
You need not worry about Trump weaponzing the court. He’s not going to do it, there is no evidence that he plans to nor any strategic gain from doing so.”
That quote didn’t age well.