The Supreme Court and Disaffected Progressive Voters

Last minute appeals to disaffected progressive voters are now being made, with the Supreme Court at the forefront of the debate as always. Although I come down emphatically  on the side that argues for all to vote to re-elect President Obama and always have for a number of reasons, it’s not hard to see how 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 as 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 often 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 the Affordable Care Act and it’s most controversial component, the individual mandate, 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  real possibility if he were to win, it would be difficult to overstate the damage the conservative majority could inflict. If President Obama is re-elected there’s a chance that he will be able to replace a Reagan appointee and end the right’s majority. A durable majority mainly consisting of relatively young Obama appointees isn’t out of the question

Some disaffected progressives contend that there isn’t much difference between the Democratic appointees and their Republican counterparts. I disagree. Yes, Justice Kagan may be an open question on a handful of things and other Democratic appointees may 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 or inconsequential. It’s possible to advocate for more of a difference in future Democratic appointments without diminishing the differences in the present.

Other disaffected voters argue that elected Democrats haven’t fought the right’s Supreme Court nominees. I wouldn’t dispute 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 Senators should default to voting for a president’s Supreme Court nomination, 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 norm might look like in a perfect world in which elected Republicans are not, you know, elected Republicans.

However, the Democratic conference in the Senate has improved since 2006 and will improve further with the additions of  Baldwin, Hirono and Warren. As always, advocates will still need to push Senate Dems on a range of issues but that looks more doable than it used to. This isn’t Mission Accomplished it’s Mission Possible.

Spend some time reading what progressive 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. What Romney appointees would do on the court really is scary. But the Supreme Court is not cause to end all uncomfortable discussions and internal debate. 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 “better than Republicans” is a woefully inadequate standard.

I would hope that any progressive voters making a last minute decision would separate the way the Supreme Court has been invoked from the issue itself. Because although it should never be used to try shut down all debate and dissent about things like foreign policy, the future of the Supreme Court is at stake in this election.



  1. Hi Mike,

    I have a quick question regarding your blog. If you could send me an email when you get a chance, I would greatly appreciate it!


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