Final cases for and against voting to re-elect President Obama are now being made in progressive circles, with the Supreme Court at the forefront of the debate. Although I come down on the re-elect Obama side and always have for a number of reasons, I think the way this debate has played out has done a disservice to all involved.
A brief overview:
Calling the current iteration of the court a Republican majority isn’t simplistic and misleading as it would have been with the Rehnquist court in 2004. Since Souter and Stevens stepped down there are no moderate to liberal appointees of Republicans presidents left on the court and there aren’t going to be any more where they came from. Supreme Court justices now broadly reflect the party of the president that nominated them: five conservative Republicans appointees and four moderate to progressive Democratic appointees.
The conservative side has two relatively young George W. Bush justices, a George H.W. Bush justice and two Reagan justices. The Democratic side includes two relatively young Obama justices and two Clinton justices. Over the next four years the seats currently filled by Clinton and Reagan justices will be watched closely. Reagan appointees Anthony Kennedy and Antonin Scalia are both 76. Clinton appointee Ruth Bader Ginsburg will turn 80 early next year and has batted cancer. Clinton’s other addition to the court, Stephen Breyer, is 74.
That Anthony Kennedy, the champion of Citizens United, is the swing vote speaks to the nature of the conservative majority on the court. Kennedy is labeled a “moderate” because he changed his mind and broke with the right on Planned Parenthood v. Casey. Chief Justice John Roberts was effusively praised simply because he ultimately decided not to strike down in its entirety a health care plan that originated at the conservative Heritage Foundation. Kennedy and Roberts have successfully cleared a very low bar.
If Romney were to win and replace Kennedy or Ginsburg the right’s majority would be solidified for a long time. If a “President Romney” were to replace both, a distinct possibility if he were to win, it would be difficult to overstate the damage the conservative majority could inflict — damage that would take decades to undo. If President Obama is re-elected there’s a good chance that he will replace a Reagan appointee and end the right’s majority. A durable majority consisting mostly of relatively young Obama appointees isn’t out of the question
Disaffected progressives contend that there isn’t much difference between the Democratic appointees and their Republican counterparts. Yes, Justice Kagan may be an open question on some things and other Democratic appointees only look like progressive stalwarts when compared to the right. But that doesn’t mean the differences on reproductive rights, effective regulation in the public interest, the right to organize, campaign finance and civil rights are small. They’re real and undeniably consequential.
Some of the disaffected argue that elected Democrats haven’t fought the right’s Supreme Court nominees and the specter of a long-term right-wing majority on the Supreme Court is being raised to scare progressives into supporting Democrats. There is certainly some truth to both claims. I don’t doubt that in 2003, even though George W. Bush had lost the popular vote and it was well understood that his eventual nominees would be stealth regressives, there were Senate Democrats privately and perhaps publicly giving voice to the traditional view that a president should get to choose their justices, almost regardless of context and consequence. Some Senate Dems may have even patted themselves on the back for their display of inordinate reverence for what the process might look like in a perfect world in which elected Republicans are not, you know, elected Republicans. With that said, the Democratic caucus in the Senate is improving significantly. And what Romney appointees would do on the court really is scary.
Spend some time reading what progressives disaffecteds are thinking and it quickly becomes apparent that what they resent the most, and understandably so, is the notion that the two words “Supreme Court” render profound disagreements on other issues invalid. The Supreme Court is a very good reason to vote to re-elect the president if you’re a progressive voter, especially if you’re living in a swing state. It’s not and never should be used to end uncomfortable discussions. The disaffected are right that if something is wrong or counterproductive it doesn’t become any less so just because the president who is doing it is one we voted for; they’re right that dissent is integral to progressive change; and they’re right that on climate change and civil liberties (two issues they cite frequently) “better than Republicans” is a woefully inadequate standard.
I would hope that progressive voters in swing states making a last minute decision would separate the way the Supreme Court has been invoked from the issue itself. Because although it should never have been used, to whatever extent it was, to try shut down debate about foreign policy or anything else, the future of the Supreme Court is at stake in this election.