4-5. 4-5. 4-5. 4-5. 4-5. 5-4. 5-4. 5-3. 6-3.
No, these aren't sports scores. These are the Supreme Court votes, good guys listed first, in nine critical cases of the Roberts Court. Every one of these decisions was monumental. And every one of them was close. The increase in polarization we've seen over the last twenty years - most of it asymmetric, due to Republicans jumping off the deep end - has spilled over into the Supreme Court. This has happened just as the Court has taken an outsize role, due to gridlock produced by GOP-friendly off-year electorates and Democratic-friendly presidential electorates. As such, tiny shifts on the Court will have massive impacts on public policy.
In this climate, the Supreme Court alone makes it absolutely imperative that we elect a Democrat in 2016. Whoever our nominee is (and there will be healthy debate over this, as there should be), losing is not an acceptable option. Although winning in 2016 will not solve all of our problems - not by a long shot - a Democratic-friendly Supreme Court is a vital precondition for progress.
More detail, and a breakdown of the cases, over the squiggle.
The close losses.
Each of the following decisions was 5-4. In each decision, every justice appointed by a Democrat was in the minority. And with the exceptions of Stevens and Souter, who are no longer on the Court, every justice appointed by a Republican was in the majority.
- Citizens United.
- Voting Rights Act invalidated (Shelby County v. Holder).
- "Partial birth abortion" ban upheld (Gonzales v. Carhart).
- Individual firearm "rights" (D.C. v. Heller).
- Corporate "religious freedom" (Burwell v. Hobby Lobby).
One more justice. That's all it would take to overturn corporate personhood and restore McCain-Feingold to law. If you see corporate personhood as an existential threat to democracy, this is by far the easiest way to overturn it. And make no mistake, any Democratic nominee would appoint justices opposed to this ruling - all the leading candidates have explicitly promised to do so.
One more justice would also restore the Voting Rights Act. Hobby Lobby would be gone. The Second Amendment would no longer be read as an individual right to firearms. Roe v. Wade would be safe from the chipping away that Kennedy et al have done. And there are many more cases... most affirmative action cases are being decided 4-5. Those are having a dramatic effect on the composition of American public universities, and are a huge setback for the cause of equal opportunity.
The close wins.
The first two decisions were 5-4, and the third would have been 5-4 if Roberts did not have to recuse (he voted the wrong way in the lower courts). We picked off Roberts in the first and Kennedy in the second:
- Health care I (NFIB v. Sebelius).
- Marriage equality (Obergefell v. Hodges).
- Guantanamo detainee rights (Hamdan v. Rumsfeld).
To call these cases important would be an understatement. We were very fortunate in each of these cases to be able to pick off an additional Republican-appointed justice (besides Stevens and/or Souter). We were saved by Roberts' inclination towards incremental change in the first case and by Kennedy's libertarian streak in the second.
If there were one fewer liberal justice on the Court, the ACA would be gone, and with it the lives of tens of thousands of people. The stakes simply could not be higher. Hamdan v. Rumsfeld, throwing out Bush's military commissions for Guantanamo detainees, was as close to a no-brainer on national security as you can get - we had to have that one. After the last week, the cause of marriage equality needs no introduction or explanation.
And although it has not been directly challenged, Roe v. Wade is likely 5-4 right now. One more conservative justice and a woman's right to choose is gone.
The almost-as-close win.
- Health care II (King v. Burwell).
This case, although it was the least close of all of them as we won 6-3, is actually the best illustration of the Supreme Court's importance going forward. Because it should have been 9-0. The challengers' argument was preposterous, and when the suits were first filed their authors were dismissed as cranks. Yet three justices on the Supreme Court still agreed with them.
So King v. Burwell is an acid test. It tells us exactly how many justices are willing to find any excuse, no matter how flimsy, to do the bidding of the Republican Party. That number is currently three.
Analysis.
I've seen the theory that, in certain 2016 general election scenarios, losing the presidential election to a Republican would eventually help the progressive cause. The idea is basically that giving them the reins would eventually, in four or eight years, lead to a crash for which they would be blamed, which would boomerang and lead to Elizabeth Warren or someone like her sweeping to power on a progressive dream platform, with single-payer and the like.
There are many problems with this idea (politics is complicated, events can be unexpected, and so triple-bank-shots like this tend not to work). But the most important one is the Court. Four justices were willing, on fairly flimsy grounds, to do the Republicans' bidding and kill the ACA. In the boomerang scenario, if we lost a justice - for example, if Ruth Bader Ginsburg's health fails her - that number grows to five. Even if President Warren somehow came to power with Democratic supermajorities and passed an awesome single-payer health care plan, those five justices would be looking for an excuse to kill it. In what would necessarily be a complicated law, they'd find something they could use.
All sorts of other things would be a disaster as well, starting with Roe v. Wade. We'd go back decades. And if - god forbid - we lost two justices, King v. Burwell shows that the Supreme Court's ultra-conservatives would put up a roadblock on every single issue. In this climate, we wouldn't get another Stevens or Souter appointment, or even a Kennedy. We'd get two Scalia/Alito clones. There would be no progressive policy allowed to stand. The damage would take generations to repair.
Conclusions.
For the sake of the Supreme Court, we have to elect a Democrat - whoever wins the primary, imperfect though they might be - president in 2016. No matter who the Democratic nominee is, even if they make little progress elsewhere, they will appoint good people to the Supreme Court. Bill Clinton was a moderate - well too far to the right for a lot of progressives - and yet look at his justices. Breyer and Ginsburg have been on the right side of every one of these issues. The distance between the most liberal Democratic justice (Sotomayor, or Ginsburg) and the most conservative one (Breyer) pales in comparison to the distance from Breyer to the most liberal Republican justice currently on the Court (Kennedy). So if a Republican had been president instead of Clinton... we would likely have won none of these cases. And if any of a number of things had gone better in 2000 (the Supreme Court's insanity, the media's destruction of Al Gore, or Ralph Nader's ego), or 2004 (the Swift Boat attacks), we would likely have won every single one.
In today's climate, the Supreme Court is critical for advancing a progressive agenda. Winning it will not solve all of our problems - not by a long shot - but without it, progress will not be possible.
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I'd like to thank several commenters (Adam B, VClib, and Quabbin) for pointing out some silly mistakes in the first draft of this diary. I deleted the diary and re-published it in order to incorporate the necessary changes. Thanks again!