There is a stark and obvious asymmetry in the types of judges being nominated by the two parties. Assume a judicial scale exists spanning from 1-10 with 1 representing the most liberal, 10 representing most conservative, and 5 being a perfectly moderate swing vote.
Barack Obama’s nominee, Merrick Garland, falls somewhere between a 3 and a 4, and probably closer to a four. He would stand with the “liberal” judges on issues like abortion and guns, but would have almost certainly stood on the side of corporations in relation to labor issues. His views on Citizens United weren’t clear, but many speculated he could go either way on the issue. The same goes for unions. The picture is unambiguous; Merrick Garland is a left leaning moderate.
President Trump’s replacement for Scalia after Mitch McConnell refused Garland a hearing, Neil Gorsuch, is somewhere between Scalia and Clarence Thomas. Scalia was a consistent conservative except for a few intermittent issues when he would vote with the liberals on civil liberties. He ranks as a nine on the scale. Clarence Thomas is a solid 10 on the scale, truly as judicially conservative as it gets. Neil Gorsuch falls between Clarence Thomas’s puritanical conservatism and Antonin Scalia’s extreme conservatism with minor exceptions.
Justice Brett Kavanaugh, the replacement t swing vote Anthony Kennedy, falls in the exact same camp as Neil Gorsuch. He falls in between the 9 and 10 scale, although even closer to 10 than Gorsuch. You can bet house money on him voting with Clarence Thomas on 98 out of 100 cases.
Like so much of 21st century politics, Democrats have advanced moderates while Republicans swing far to the right. Of course Republicans dispute this and say the Democrats have shifted to the left, but we have objective data that measures and scores legislative behavior and judicial nominations showing asymmetric polarization in EVERY year since the election of George Bush. Strategically, too, Republicans have consistently employed hardball tactics while Democrats obsess over norms and institutions. After McConnell vowed to block Merrick Garland for a year, President Obama laid down his arms and accepted his fate. There was little Mr. Obama could have done to actually get Merrick Garland confirmed, but he had political options. He could have nominated a series of justices who represented the Democratic coalition – a woman, an African Americans, a Muslim – and made McConnell deny each one a hearing. He also could have tried to jam through a recess appointment. This almost certainly would not have worked, but it would have made Republicans stay in Washington instead going home to campaign or the Senate majority they now hold.
This illuminates the dispositions of the parties rather well. While McConnell was behaving in an unprecedented fashion, refusing Merrick Garland even a basic hearing in the Senate, Barack Obama was worried about norms and decorum. This neoliberal centrist civility has decimated the Democratic Party at all levels of government.
There’s a broader issue at play here as well. The left simply is not animated by the courts. The Bernie Sanders wing of the party was rightfully upset at the Merrick Garland nomination, let alone Obama’s general politics of accommodation. Yet, even while leftists vented their frustration over Merrick Garland’s moderate views, they advanced no alternatives to Garland. Why? Because they don’t know any alternatives to Garland. While conservatives have a laundry list of ultra conservative judges who attend Republican conferences and build personal relationships with party members, the left cannot provide a single name who is qualified and adequately progressive. And it’s not because they don’t exist.
For conservatives, the federal judiciary is everything. This make a lot of sense. The role of the courts is to serve as a bulwark, upholding the limitations of the constitution against legislative and executive overreach. This is essentially the very definition of American conservatism. They rely on the courts to stop largely popular policies – healthcare expansion, environmental regulation, gay rights – from becoming the law of the land. If they cannot stop the legislature and the executive from advancing these agenda items, the court is their only hope.
Further, the major Supreme Court issues for the right are simply more enticing than those for the left. Conservatives are counting on Gorsuch and Kavanaugh to create a 5-4 majority that overturns Roe v Wade, which would be the biggest win for conservatism in decades, legislative or otherwise. Pro-life conservatives, especially religious types, truly believe that abortion is murder. To them, overturning Roe literally means stopping millions of murders from occurring in the United States.
There are no issues that are equally animating for the left. The Janus case that was just recently decided by the court, Gorsuch’s first major decision, will effectively gut unions in this country, which were already the weakest they have been in a century. This is extremely impactful, but it simply does not pack the same punch. Progressives are not going to turn out in droves to save unions in the same way conservatives turn out for abortion or guns.
This is the state of judicial politics. It is, of course, devastating for the left. Unless Roberts shifts to the left and becomes a swing vote, a bunch of 5-4 conservative decisions are about to come down the pipeline that are going to affect America in a dramatic way. If Republicans hold the Senate and Ruth Ginsberg – who is in her 80’s and has survived two different kinds of cancer – retires or is forced out by health in the next two years the court could gain yet another young conservative justice. This would guarantee a conservative decision on every important case. Roberts cannot be the swing vote hero on a court with five ultra conservatives.
Here is the issue that the left seemingly fails to understand – the changes happening today and those that could happen if Ginsberg cannot make it through 2020 are going to impede the progressive agenda that seems to be in the pipeline. That is to say that the Democratic Party is finally shifting to the left in the post-Bernie Sanders era and advancing popular programs like Medicare-for-All, debt forgiveness, and immigration liberalization. There appears to be a wave forming that is going to sweep both 2018 and 2020 such that it is conceivable that 2021 will begin with a progressive President allied with a progressive majority in both the House and the Senate. Democrats will have a real opportunity to sweep away the white anxiety politics of Trumpism and build a real coalition of working people that Republicans will not be able to compete with until they substantially shift their politics.
This is to say that while it is far from guaranteed, there is clearly a progressive coalition building and the numbers undoubtedly point to it being at least moderately successful. If Democrats field a candidate that can beat Trump and his sub-40 percent (with a good economy) approval rating, we will have some form of progressive legislation passing through Congress in the year 2021.
This is when the Supreme Court might really start doing damage. The scene is not that hard to imagine. The Democrats, after making gains in the House and retaining their slim deficit against a horrible 2018 Senate map, sweep 2020 with a huge majority in the House and 58 seats in the Senate. They pass single payer under the guise of expanding Medicare to all citizens such that it is palatable, gaining the votes of two vulnerable blue state Republicans. The left celebrates as we begin implementing universal healthcare. 9 months later the bill is challenged and goes to the Supreme Court. It is struck down 5-4 under the reasoning that mandating healthcare without exemption is illegal under the constitution.
I do not have the legal expertise to know what justification a conservative court would use to strike down single-payer. The legal experts do not know for certain, either. What we can say, however, is that if a case challenging universal healthcare is brought before a conservative Supreme Court they will do everything they can to strike it down. There is virtually no chance that Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, Samuel Alito, and whichever ultra-conservative Trump pick might fill Ruth Ginsberg’s seat are going to vote with the liberals to uphold government mandated health coverage. Even if Trump does not replace Ginsberg, it is far from obvious that John Roberts would vote in favor of upholding single-payer. In fact, the betting markets would probably have him voting with the conservatives.
Thus, the left’s lack of activism around the courts is going to come back and bite them hard. Perhaps Roe will not be struck down and this court will not look markedly different from the one the preceded it because Roberts will become the swing vote that Anthony Kennedy was. In fact, I expect that to be the case on big-ticket issues like abortion. But soon, when the new left coalition is trying to transform the American economy to one that protects the environment and provides a generous social safety net for the working poor, progressives are finally going to see why courts matter.