During Richard Nixon’s first term in office he placed three Justices on the Supreme Court: Warren Burger (as Chief) in 1969, and Lewis Powell and William Rehnquist in 1972. That effectively ended the liberal majority on the Court and it has remained an (increasingly) conservative Court ever since. There are many ways in which this has mattered. For example, in 1972, the Supreme Court ruled in Furman v. Georgia that the death penalty as then imposed in the states was unconstitutional. The California Supreme Court banned the death penalty in their state in the time between the oral argument in Furman and the issuance of the decision. The combined result was an effective moratorium on the death penalty that lasted until 1976 when the more Nixonian-flavored Court ruled in Gregg v. Georgia that the death penalty could be imposed provided that the process met certain standards. California’s voters used the initiative process to immediately overrule their Supreme Court and reinstate the death penalty but it did not actually carry out any executions until 1992.
This example demonstrates two things. The first is that it’s possible to eliminate the death penalty in this country and that we may be closer to accomplishing that many people suppose. The second is that even overturned or superseded Court decisions can have long-lasting consequences, both good and bad.
The Nixonian Court, in a series of rulings (most notably Buckley v. Valeo), gutted the campaign finance efforts of legislatures all across the country by defining money as speech. There have many other noteworthy cases since 1972, including the watering down of Roe v. Wade that occurred with Casey v. Planned Parenthood, the infamous Citizens United ruling, and the more recent gutting of the preemptive enforcement mechanisms of the Voting Rights Act.
But all the action hasn’t been on the court. In 1987, the FCC (with all members appointed by either Nixon or Reagan) did away with the Fairness Doctrine. This opened the door for Rush Limbaugh, Fox News, and the erosion of the public interest requirements for broadcast news.
In all of these cases, it took years to see how the rulings would turn out. The death penalty would make a comeback in some states and not in others, while remaining on the books if rarely used by the federal government. It would never become rationally applied or overcome the objections of Justices Brennan and Marshall that it was cruel and unusual in practice. Abortion rights would be whittled away in many states. Every effort to regulate political money would come to grief leading to a Congress that spends half it’s life on the phone begging for money and a Democratic Party that had to keep labor at arm’s length in order to finance itself. The media became polarized and frivolous and primarily profit-driven, losing any sense that they have obligations to the public.
Yet, these things can be unwound, at least to a degree, in the same way that they became problems. It starts with a liberal majority on the Supreme Court that will take a look at the death penalty again, that will revisit whether money is really speech, that will slap down voter suppression efforts and aggressively defend reproductive rights.
That majority will come soon, provided that Scalia’s seat is filled by a liberal judge. It will grow if Justice Kennedy retires as many expect. It will grow again if Clarence Thomas decides that it’s no fun being a silent dissenter in a caucus of three.
Just as Nixon remade the Court in his first term in office, Hillary Clinton could easily do the same thing, leaving it with as much as a 7-2 liberal majority for years to come, even if she loses in 2020.
And I’ve only scratched the surface of how this could matter. Want criminal justice reform and an end to solitary confinement? Want to draw brighter Church/State lines than what we’ve gotten with blurry rulings like Burwell v. Hobby Lobby?
Previous judicial efforts to lead our country toward progress created a political backlash, but the new Generation X and Millennial generation are ready to digest this kind of change.
And that’s precisely why the Republicans broke all norms and precedent in refusing to confirm Merrick Garland and are promising to block any new Supreme Court appointments if Clinton is elected. They came damn close to getting a 5-4 majority for overturning Roe v. Wade but the wrong Supreme Court Justice died and now things are set to tilt sharply in the opposite direction.
It’s going to matter, and the Republicans seem to understand this far better than the Democrats.
FlaDem – Booman just gave you his argument, his selling points for those liberal hold-outs.
Damn right!
In a lot of ways, this is all that matters.
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GOP understands it better because as you noted yesterday, Dem side has nany more casual voters and because culturally the GOP continues to lose ground. SCOTUS is one of those few spots that give you power without accountability and GOP cant handle accountability well.
Great point.
It’s hard to believe how people don’t get this; what a huge achievement it would be to get a liberal court. The idiots on the right get it but better educated folks on the left mostly do not.
Perhaps it’s easier to understand if one views abortion as murder and considers Roe the legalization of wide-scale infanticide. Those of us who would see any result that struck down Roe as the legalization of sexist oppression may fear a conservative court but unless and until it happens it’s not something most on the left worry about.
As an attorney, I see the repercussions of a liberal Supreme Court as enormous. It would likely be the beginning of the end of this long nightmare that’s been unfolding since 1968 when we got the prototype of the political alignment that lead us here, to Donald Trump and all the rest of the extremism that his existence implies.
I was born in the 1980s, near the zenith of the Reagan era. I’ve never experienced anything but a conservative supreme court or the ascendancy of rightist legal theory. I went to law school, so I KNOW academically what an alternative can look like and it is one I find more beneficial than a conservative one, but how many people my age or younger have no idea? Can’t even think of it? How many people older have no interest or education regarding the court and don’t think of it either?
And like you said, if you think abortion is literally infanticide this probably matters more to you than if you want an abortion. Especially if due to geography, finances or sex ed. it’s not a huge issue to you.
Yes, I think there are many people on the left who just don’t get how important the court is.
If we get an HRC presidency and a DEM senate, it’s probably game over for a conservative court for a generation.
That’s what much of the fight is about now. Plenty of folks on the right would rather have Trump than a liberal Supreme Court.
That’s why the Republicans came home. I had anticipated thus, although I hoped otherwise.
The Senate margins have remained unchanged by and large over the next few months. The D’s are slight favorites (as they’ve been for some time) to hold a slim majority (tie+VP or 51-49). I’m doing my part here in PA.
Thank you for that. Seriously.
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This talks about the S.Ct., but the Federal District Courts and Courts of Appeals are more important overall, because they make vastly more decisions than the relatively few cases that are heard by the S.Ct. Republicans know this and have aggressively blocked Obama’s judges. Worse, the informal and corrupt system of requiring a state’s Senators to approve of any nominee to that Circuit Court of Appeals, has enabled Texas Senators John Cornyn and Ted Cruz to block any appointments to the Fifth Circuit Court of Appeals.
It’s nothing more than a naked power grab to prevent Liberals from having a majority on the Appeals Court. “Carl Tobias, a law professor at the University of Richmond who monitors judicial vacancies, said in an interview that the situation in Texas was “outrageous” with 12 vacancies – 10 for the District Court and two for the 5th U.S. Circuit Court of Appeals – making it “the epicenter of the judicial vacancy crisis.”
“In a statement, Sen. Patrick Leahy, D-Vt., the ranking member of the panel, who did not attend the hearing but supports the nominees, said, “More than one-third of all judicial emergency vacancies are in Texas.”
Read more here: http://www.mcclatchydc.com/news/politics-government/congress/article100474627.html#storylink=cpy
But that does not negate what Booman is saying. It reinforces it, because Clinton will be making those appointments too.
Obama has quietly been making huge progress on the circuit courts. Clinton will finish the job.
Of course there can be out layers like Texas that can last for years. The SCOTUS is the firewall in that situation.
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“It’s going to matter, and the Republicans seem to understand this far better than the Democrats.”
Yes. And it’s why it’s harder and harder for me to listen to the folks on our side of the aisle who are so steeped in anti-Clinton conspiracy nonsense. At least the Breitbart folks have an aim with their nonsense peddling, as ugly and horrible as it is. On the left, it’s often sanctimony combined with an ugly unpragmatic nihilism masquerading as purity.
You note how Bernie is in line to be head of the budget committee in the Senate, a powerful post for a progressive to occupy, that that’s where change gets made in our system, and you are told Bernie’s a sellout. You tell them he wants a president who’ll work with him and sign the budgets he produces, they tell you Hillary’s for fracking, war, and oligarchs and nothing can change. You talk about the court, they tell you you’re asking them to vote out of fear, as if your fears of the results of a Trump victory aren’t legitimate. You tell them getting members in Congress who will vote to pass things the want to see happen is how “revolution” happens in our system, and they give a litany of Obama failures (public option), without acknowledging the reality of the thin margins he had to work with.
It’s all a set up. It’s all rigged. Corporations and oligarchs control everything and nothing ever changes. Unless things happen a certain, specific, clean way, despite all the good that has come out of the Obama administration that is worth preserving, if not enhancing, they want nothing.
Bet on it.
But I heard around here that Clinton used Wieners computer to hide emails from the FBI. And that she might have MS.
I’m not really a progressive, I only pretend to be one on the internet.
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She hid the messages from her doctor about MS. Unfortunately this meant they had to delete the messages about killing Vince Foster and dissolving his body in a vat of hydrochloric acid.
You forgot to remind us of your moral superiority. Moral superiority compared to neoliberal sellouts.
My superior understanding of sociology, psychology, entertainment, and culture give me a far better perspective of these issues. Only my humble nature prevents me from flaunting it.
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I was a member for some time of a Bernie group with some hundreds of members in Northern Virginia. Post-nomination, they were searching for a new role. I would have been pleased to help out (I have a Ph.D. in government and 27 years in the Foreign Service, so I might have been useful), but I couldn’t stomach their willingness to tolerate postings referring to Clinton as a “thieving bitch” on their Facebook page. I made clear that their moderators needed to find ways to rid the group of that kind of poisonous commentary if they wanted the group to play a worthwhile role in future. They were unwilling to do so — unable, as far as I could tell, even to engage with the issue. So I dropped them.
This sounds fairly similar to my experience (minus the educational background on my part). I’m still on the group. Actually surprised that I haven’t been banned (some folks who know me IRL are also involved with it). So I stay on. Sort of a keep my enemies closer thing at this stage in the game.
These assholes do Bernie no favors. Me? I was full-tilt Sanders during the primary. Having him head the budget committee? Damn, that is a sweet victory in its own right. Instead, the purity assholes want to persuade us to snatch defeat from the jaws of victory, simply because they didn’t get their pony. Bleah!
It’s not even about Bernie to me. It’s about a conspiratorial and unpragmatic world view that pretends to want great things, but ultimately doesn’t want to participate in the real world, while judging others who do. Why shouldn’t I vote out of fear, for example, if I am worried about who Trump is going to empower? Clinton may not be my ideal, but empowering openly racist assholes, some with violent proclivities, is something I want no part of. Telling me Trump “might” be better on trade is 1) a huge maybe given his business history and 2) not worth the ugly things he brags about wanting to do.
We’re on the same page here. I wouldn’t trust any contract Trump offered, nor any treaty he would agree to. The guy is a genuine crook. His racism, misogyny, religious bigotry, and on and on disqualify him from the get-go. I don’t need Clinton to be perfect. Just knowing she’s competent, and knowing that she along with a Senate majority can at least minimize the damage the right-wingers in the House will no doubt cause is enough to make me enthusiastically vote for her. Already done the early voting in fact. And once this election is over, I am going to be purging my social media of everyone who openly supported Trump and Stein this year, as I can’t look at any of them in the eye with any sense of respect.
Well, I AM voting out of fear. I look around and my blood turns to piss and my heart starts pumping dogshit, that’s how scared I am.
It’s looking like over 45% of voters will vote for Trump, simply out of hatred for the ‘other’ and tribal allegiance. The FBI seems unhinged, elite republican politicians have put party over country, and the fucking Bundy’s just got acquitted!
Damn right I’m voting out of fear.
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Since I and mine belong to several of the demographic groups that Trump’s most virulent supporters would love to see eliminated, and because of an ancestral hatred of neo-Nazis, yeah, there is definitely something about this electoral season that has given me the wiggins. That and knowing that as a public service worker, those whom I serve are the ones most likely to be hurt under a Trump regime. And then there is just plain disgust – not only at the hatemongering from the right-wing, but from just how utterly pathetic a significant portion of the left is at this point in history (to the extent that enough of them are indistinguishable from their alt-right counterparts). At this juncture, we’re so far removed from the various Red Scares and COINTELPRO that it’s worth accepting that the reason we don’t have much in the way of an organized left is due in significant part to the inability of far too many self-styled leftists to do anything more than whine and complain about how awful life is, or are too interested in theoretical minutia to consider the lived reality of those in need of tangible support and what they might actually want. At this point, I’m just grossed out whenever I read blog comments or look at what is left passing for “left” on the old internet tubes. There are certainly positive reasons to vote for HRC and I surely have noted those elsewhere. She is a known quantity and is at least saying the right things, even if it required a (pleasantly) surprising challenge by Sanders to get her there. At worst, she’ll be a continuation of the Obama administration. I can live with that. I can also live with making sure that any and all of us so motivated hold her feet to the proverbial fire once she does get elected to act on her promises to the extent that a divided Congress will allow.
The first Congressional election of Richard Nixon was a classic Cold War power shift already.
And he was a vocal member of House Un-American Activities Committee, instrumental in bringing down other prominent New Dealers Alger Hiss, Harry Dexter White.