Ian Millhiser, senior Fellow at the Center for American Progress, reminds us that no matter how hard Democrats organize to get out the vote, how many petitions we sign, how many marches or meetings or rallies we go to, how many media interviews, racist Republican gaffes or YouTube videos of shocking police brutality caught-on-tape go viral, or how many "likes" a Diary here gets on Facebook, the future of this Party and all it values--from the quality of the jobs available to us and coming generations, to the very air we breathe, is dependent on just one thing--the makeup of the United States Supreme Court.
It's not an exaggeration to say that if the next President is a Republican, and bears any resemblance to the Republicans who now dominate the House and Senate, we can safely kiss "goodbye" to the country we've all grown up in. Millhiser, writing for Think Progress, suggests that the consequences to the Supreme Court from such an election would ultimately wipe out the Democratic Party as well. And if you think "it's already bad now," or "it doesn't matter," then--to put it more diplomatically than it deserves--you have no clue.
Everyone celebrated wildly when the Affordable Care Act was declared Constitutional and upheld--twice, no less, by the good graces of one (or two) conservative Supreme Court Justices. Everybody backslapped and high-fived each other when same-sex marriage was declared the law of the land by the good graces of, again, one highly conservative Supreme Court Justice. Liberal values were really on a roll.
No, actually, they weren't.
The fact is that thanks to the same Justices who made the difference between victory and defeat in those three cases, we're on the verge next year of what are likely to be some of the most far-reaching setbacks to the Democratic Party in its history. Ones that the Party may not survive, at least in the form that we know it. But the real fate of the Democrats--and of the American people--hangs on the next Presidential election which will determine the future makeup of the Court.
The Supreme Court's deliberate gutting of the Voting Rights Act in 2013 was only the latest step for its radical conservative majority's methodical effort to dismantle the power structure of the Democratic Party and eliminate its influence as a statewide or national threat to corporate hegemony. Citizens' United led the way, of course, adding a necessary layer of insurance for the GOP by cementing into permanent, immutable law the influence of that Party's billionaire donor base under a contrived sophistry of concern about First Amendment rights. The seldom-acknowledged role of the far-right Federalist Society in pre-screening and vetting Republican judicial appointments has led to a reactionary takeover of not only the Supreme Court but a large portion of the remaining Federal Judiciary by Judges whose thinking is is rooted in near-militant conservative ideology, far diverged from the mainstream. All that is required to deliver the final blow is the election of one more Republican President, who will almost certainly be called upon to replace octogenarian Justices Ginsburg, Kennedy and probably Scalia and Thomas as well. But it is the first two replacements who will make all of the difference to this country's future.
Largely forgotten in the wake of all the celebrating as the Court appeared to rule in favor of progressive values lay the uncomfortable fact that most of those decisions would have gone the opposite way with the shift of one vote. One different member of the Court and there would be no Affordable Health Care Act, there would be no legal same-sex marriage. It's the same story with abortion. One vote and Roe v Wade is overruled, leading to a state-by-state patchwork outlawing abortion nationwide except in California and a few New England states.
This article by Matt Yglesias sent many Democratic hearts into atrial fibrillation last week. His subject was the dominance of the Republican Party not just in at the national level, where they control the House and Senate, but also at the statewide level, where they control the vast majority of governorships and state legislatures. This has led to severe consequences both to Democratic constituencies and progressive issues including:
* An unprecedented wave of restrictions on abortion rights
* The spread of union-hostile "right to work" laws into the Great Lakes states
* New curbs on voting rights, to further tilt the electorate in a richer, whiter, older direction
* Large-scale layoffs of teachers and other public sector workers who are likely to support Democrats
He might have included the gradual defunding of public schools and the rollback of environmental protections as well. Yglesias' proposed solutions rely on tactics for Democrats to increase down-ballot (statewide) success, rather than placing all their "eggs in one basket" with Presidential elections, and he enumerates them in some detail. The article suggests that Democrats need to expand their ideological flexibility or risk electoral annihilation:
Winning a presidential election would give Republicans the overwhelming preponderance of political power in the United States — a level of dominance not achieved since the Democrats during the Great Depression, but with a much more ideologically coherent coalition. Nothing lasts forever in American politics, but a hyper-empowered conservative movement would have a significant ability to entrench its position by passing a national right-to-work law and further altering campaign finance rules beyond the Citizens United status quo.
Yglesias' point was Republicans have the power to perpetuate their dominance far into the future by using the tools of government through pervasive gerrymandering. He hopefully concludes "nothing lasts forever."
But he provides no reason why that should be the case.
That is where Millhiser believes Yglesias' article falls short. Millhiser points out that to read Yglesias' piece is to come away with the notion that there are only two branches of government --the Legislative and the Executive. It ignores the fact that domination of the third branch--the Judicial--is arguably the most important of all, one that directly led to the policies we now see implemented against worker's rights, abortion rights, and voting rights in many states. Millhiser argues that the fate of the Democratic Party lies with the Supreme Court, and specifically, that Court's willingness to sanctify the type of gerrymandering that has allowed the Republican Party to seize seemingly permanent majorities at the state and national level:
If you don’t like gerrymandering, you should blame the Supreme Court. In the 2004 case Vieth v. Jubelirer, four conservative justices said that they would forbid federal courts from hearing challenges to partisan gerrymanders, and Justice Anthony Kennedy’s concurring opinion was only slightly less dismissive of these lawsuits. The result is that state lawmakers have been free to draw maps that entrench their party and lock out the other party, even though such maps violate voters’ First Amendment rights.
Forget about "right to work" laws in separate states. The Supreme Court is poised next year to deliver a much harsher blow to the very idea of unions:
With respect to unions, the Roberts Court could make Scott Walker look like Eugene Debs. Sure, Republican state lawmakers can enact a so-called “right to work” law in a single state. Later this term, however, the Court will hear Friedrichs v. California Teachers Association, a case that asks the justices to impose a right to work regime on every single public sector union in the country. In 2014, nearly half of all unionized workers were in the public sector, so Friedrichs could deal a sharper blow to unions than any state’s government could deal on its own.
Millhiser points out that when the next President takes over Justices Kennedy and Scalia will be over 80 years old. Justice Ginsburg is already 82. The next occupants of those Supreme Court seats will decide whether the Democratic Party continues to survive or simply crumbles in the face of Republican domination:
If a Democratic president replaces them with, say, Justices Nina Pillard and Sri Srinivasan, then it is likely that partisan gerrymandering will be struck down, Crawford will be overruled and the Voting Rights Act will be reinstated. The newly constituted bench would also be able to undo any judicial attacks on unionized workers.
And any solution to the problem of gerrymandering must ultimately go through the Supreme Court:
This matters a great deal because, unless the Supreme Court intervenes, taking back the House and many state legislatures is a nearly impossible task for Democrats. In 2012, Democratic House candidates received nearly 1.4 million more votes than Republican candidates, yet Republicans wound up with a solid majority in the House largely due to favorable district lines.
Likewise several large states such as Virginia and Pennsylvania are extraordinarily gerrymandered in favor of Republicans despite Democratic voting majorities and governors in those states.
Millhiser's stark conclusion is that because of the pervasiveness of gerrymandering there is no realistic hope for the "down-ballot success" that Yglesias suggests Democrats should be striving for absent the replacement of several members of the Supreme Court. On the other hand, should the Republicans gain the Presidency in 2016, we can fairly expect more far-right ideologues cut from the same mold as Scalia, Thomas and Alito, the dissenters in the recent Burwell case, which upheld the Affordable Care Act in response to what most legal scholars considered a patently frivolous textual argument. Millhiser's point--which was lost in most of the media coverage of the decision-- is that the Court's most radical conservatives revealed themselves by virtue of their vigorous dissents in Burwell to be willing to disregard the most basic of legal precedents in order to forward their agenda:
.
King is a double warning for Democrats. It is a sign that the Court’s right flank — and the sort of judges who are likely to join that right flank in a Republican administration — are willing to sign their names to legal arguments that take them far afield from well-established legal principles.
Add two more Alitos to the mix and the damage such a radicalized Court could do to this country is staggering:
In the worst case scenario for Democrats — a scenario that many influential conservative thinkers are clamoring for — the Supreme Court’s new majority could revive something similar to the Lochner Era, a period in the late nineteenth and early twentieth century when the justices fabricated extra-constitutional legal doctrines to strike down legislation such as child labor laws and the minimum wage. If that happens, it won’t matter if Democrats overcome voter suppression laws, gerrymandering, crippled unions and whatever other obstacles Republicans on and off the Supreme Court dream up to entrench their own power. Any significant legislation signed by a Democratic president over Republican objections is likely to be struck down in the same way Republicans asked the Supreme Court to strike down the Affordable Care Act.
The scenario Millhiser poses is that of a Supreme Court run amok, wiping out the country that we know in furtherance of a malevolent, corporate-centric ideology hatched in fringe think-tanks of the American right. But there is no reason to suspect anything less of a Republican President elected in the current environment. That is in fact the Court we will get if the Republican Party takes the Presidency in 2016. The consequences to both the Democratic Party and the American people would be devastating and probably irreparable, given the fact that such appointments are life-long. Millhiser puts it as bluntly as possible:
The Democratic Party, in other words, is facing an apocalypse if the Supreme Court moves further to the right, and the only way for them to stop this apocalypse is to hold on to the White House.