[update below]
Continuing from yesterday’s post, the question is what should Democrats do now, now that the far right-wing Republican Party has a lock on the SCOTUS for years to come, until one of the five majority justices drops dead—and assuming that happens when the Democrats control the White House and Senate (and that Trump hasn’t had the opportunity to add a sixth or even seventh hard-right justice in the meantime). An ultra-conservative SCOTUS majority has been a specter that all Democrats and progressives—myself included—have dreaded, and now it’s reality.
The principal focus has been on Roe v. Wade and Obergefell v. Hodges, of these being repealed, which would of course be terrible, though perhaps not as calamitous as one may fear, as abortions are already difficult-to-impossible to obtain in many red states but will remain legal in blue states (and maybe some red as well) in the absence of Roe. The real danger is in further gutting the Voting Rights Act, upholding extreme partisan gerrymandering, striking down remaining campaign finance laws, and, above all, turning the clock back to the Lochner era in economic legislation and collective bargaining—thus rendering unconstitutional legislation passed by a future Democratic congress and signed by a Democratic president. The specter of this is truly nightmarish.
But I am not in a state of despair or depressed. Not that I’m serene: Kavanaugh’s confirmation is indeed a dark day in American history, but it’s not the end of the world. It’s not over for the Democrats—provided, of course, that they win elections, beginning next month and continuing in 2020. The Dems do have options. For starters, the Kavanaugh confirmation, so Matthew Yglesias submitted in Vox three days ago, “will delegitimize the Supreme Court — and that’s a good thing,” continuing that “it’s time America woke up to the radical right that’s run the Court for years.” In a similar vein, Paul Starr of The American Prospect wrote:
…Democrats should [certainly not] have ducked this fight. There’s no way to win in politics or in anything else if you give up in advance. And the Kavanaugh battle may bring about one good result, though it’s nothing to cheer about.
Many Americans have an out-of-date view of the Supreme Court as a bulwark of liberalism. In fact, Republican presidents have made 15 out of the last 19 Supreme Court appointments, and the rulings of the most recently appointed justices have increasingly followed partisan lines. The decisions about same-sex marriage and a few other highly publicized cases have even misled many liberals and progressives into thinking the Court is more liberal than it is. Now that Kavanaugh is replacing Anthony Kennedy, they should be disabused of that illusion.
John Judis drove the point home in a spot-on column today in TPM, “What needs to be done in the wake of Kavanaugh’s confirmation,” which begins:
In the wake of Brett Kavanaugh’s nomination and confirmation as a Supreme Court justice, several liberals have argued that if the Democrats win a majority again in the White House and Congress, they should consider packing the court and even limiting the tenure of court justices. I agree with these proposals by Paul Starr in The American Prospect and Barry Friedman in The New York Times. But the court’s role as a reactionary institution – one that desperately needs reform – began before Kavanaugh’s nomination.
The court became a reactionary institution – one that has subverted rather than protected American democracy – when it began in 1976 its series of campaign finance rulings. These rulings – from Buckley v. Valeo in 1976 through Citizens United v. FEC in 2010 – have removed any restraint first on candidate spending in campaigns and then on individual and corporate donations to candidates and parties. The result has been that the underlying premise of political democracy – that political equality would trump (sorry to use that word) economic inequality — no longer prevails. Instead, economic inequality subverts political equality by giving the wealthy and economically powerful a greater say in our elections.
And further down, Judis concludes:
There are two conclusions I’d draw from this. First, the problems with the court didn’t start with Kavanaugh this week or even Clarence Thomas and Samuel Alito. They started in 1976. Secondly, if liberals have any dreams of moving American beyond the New Deal toward a genuine social democracy, they need to find a way to overturn the spate of campaign finance rulings from the court and reinstitute a genuinely democratic reading of the first amendment in their place. If it takes packing (or threatening to pack the court, as Franklin Roosevelt did), that’s fine. It’s within the bounds of the Constitution.
Packing the Court. The idea is in vogue among Dems, as it needs to be. When they’re back in the saddle in 2021 inshallah, they should add two new SCOTUS justices—just do it—and then propose a deal with the Republicans, that they will not add any more if the Repubs agree to a constitutional amendment—though a simple law on this may constitutionally suffice—mandating fixed terms for SCOTUS and all other federal judges. A single 18-year term is being bandied about by most who’ve expressed a view on the question, though I would go for a 12-year renewable. On the matter of SCOTUS term limits, I wrote about this myself some seven years ago. It was not de l’actualité back then but sure is now. Its time has come.
Failing court packing, a Democratic president and Congress could simply decide to go nuclear and ignore SCOTUS rulings—just tell the Court to f*** off and proceed to implement legislation Kavanaugh & Co had ruled unconstitutional—as Slate’s excellent reporter on courts and the law, Mark Joseph Stern, has spelled out. The Democrats would be provoking a major constitutional crisis but with the Court acting as a brazen partisan body and thus illegitimate in the eyes of at least half the American population, what choice would the Dems have short of packing? Charles M. Blow’s NYT column yesterday was aptly entitled, “Liberals, this is war.” Indeed. It is a war launched by the Republicans. On this, there can be no dispute or doubt. And if war is what they want, then war is what they’ll get.
À suivre.
UPDATE: On lifetime terms for SCOTUS and federal judges, author/writer Lawrence Goldstone says in TNR (October 9th) that “The text of the Constitution says no such thing.” A simple law passed by Congress would suffice to set fixed terms.
1) Fixed something in your first graf (new language in CAPS): “An ultra-conservative SCOTUS majority has been a specter that xxx SOME Democrats and progressives, —myself included—have dreaded, EXCEPT THE ONES WHO DECIDED THAT GORE (2000) OR CLINTON (2016) WASN’T PERFECT, AND SAT OUT THE ELECTION OR VOTED GREEN, OR WHO SAT OUT IN A SULK IN THE 2010 MIDTERMS, OR WERE SO ENAMORED WITH BERNIE THAT THEY BOUGHT HIS B.S. ABOUT A RIGGED NOMINATING PROCESS AND DECIDED TO STAY HOME OR VOTE FOR TRUMP TO OWN HILLARY, OR IN GENERAL WERE JUST TOO LAZY TO GO TO THE POLLS, and now it’s reality.”
2) While Judas’s point about the problems with the Court since the Buckley decision in 1976 is correct, the Court was a reactionary institution long before the eviscerating of campaign finance restrictions. A good read on the subject is the 2014 work by one of the U.S.’s most notable legal scholars, Erwin Chemerinsky. “The Case Against the Supreme Court”. One of the patterns I noticed when I was in law school was that, in the main, the Court always sides with big business. Take the issue of corporate personhood. When it is to the benefit of business for a corporation to be a person, a person it is; but when it is not to the benefit of a business for a corporation to be a person, a person it isn’t.
3) The nation has been in constitutional crisis for years, as the Electoral College is an anti-democractic (small “d”) institution. Keep in mind that if not for election shenanigans in Ohio in 2004, John Kerry would have beaten Bush with a minority of the popular vote but an Electoral College majority, which would have made three of five presidents in the 21st century people elected by a minority of the electorate.
4) Speaking of constitutional crises, the stealing of Obama’s last Court appointment was a constitutional coup — but no one really gave a damn, and the press mostly viewed McConnell’s lies through the prism of political gamesmanship (mostly admiringly).
4) And while Blow is right that “This is war”, it has been war for a long, long time — the Democrats have been painfully slow to realize it.
DHM: I agree with your points, including the fixing of the first paragraph, though differ on the bit about Ohio in 2004. Quite a Dems and other progressives were convinced that purported voting irregularities in that state handed it to Bush but after looking into the question at the time – it would have been in 2005 – I determined that it was impossible. Bush won Ohio by some 118,000 votes – a spread of 2% – which is simply too wide a margin for it to have been due to fraud or voter suppression (and without this having been flagrant or manifest). There may have been shenanigans in this or that polling station but not enough to swing the state. And as a Democratic political operative friend told me back then, Karl Rove spearheaded an under the radar screen effort to bus small town/rural evangelical voters to the polls in the southern part of the state, which padded Bush’s margin of victory.
Thanks for the correction regarding Ohio. It was still a close-run thing to having yet another Electoral College president. Something’s got to give, because the present structure of the US democratic experiment is untenable in the long run.