Despite regular reminders of the court’s incredibly important role in shaping not just the political world but all of our lives, Democrats never seemed to get that worked up about it. But they may be feeling it now. When it’s almost too late.
According to a new Post-ABC News poll, a majority of the country (57 percent) agrees with Democrats that the seat vacated by Ruth Bader Ginsburg should be filled by the winner of November’s election; 38 percent say it should be filled right now by President Trump.
And then there’s this:
There could be some ambiguity in those answers; for instance, you might say it makes no difference because you already thought the election of your candidate was of infinite importance and therefore couldn’t get more important. But it’s still unusual to see more Democrats than Republicans cite the opening on the court as inflating the importance of their vote.
Perhaps this is happening because the last time there was a liberal majority on the court, Richard Nixon was president. So despite the occasional important victory in the time since when one or another conservative justice came over to their side, liberals have been suffering defeats at the court for so long that many may never have felt they had that much to lose.
Now, of course, they do. A 5-4 conservative majority where from time to time one of the Republican appointees joins with the Democratic appointees to deliver a partial victory (such as upholding most of the Affordable Care Act) or even a substantial one (such as legalizing same-sex marriage) is very different from a 6-3 conservative majority, which could make liberal victories all but nonexistent.
As someone who has constantly tried to get liberals to realize the importance of the Supreme Court (see here or here), I’m heartened that Democrats are finally realizing what the stakes are. Unfortunately, it comes at a time when defeat is almost inevitable; while there are a few procedural moves Senate Democrats can make to slow the process down, Senate Majority Leader Mitch McConnell (R-Ky.) is determined to move Trump’s nominee through the process in a matter of weeks, and there’s almost nothing that will stop him.
It’s particularly important to President Trump himself, who has essentially said that his nominee must be on the court so she can help him steal the election.
Even if that doesn’t happen, the future is looking pretty miserable. Pick your issue — reproductive rights, civil rights, voting rights, workers’ rights, climate change — and chances are that in the next few years, the Supreme Court will issue rulings about it that horrify and enrage you.
That will be true no matter what happens in this election. But in a Biden administration — or in any Democratic administration in the near future — lawsuits will move to the center of Republican legislative strategy. Every significant piece of Democratic legislation will be challenged in court by Republicans, safe in the knowledge that the Supreme Court is their ace in the hole.
The arguments they make against health-care reform or immigration reform or action on climate change when the bills are being debated will be merely setting the table for the conservative majority on the Supreme Court to take its sledgehammer to the Democratic legislation, no matter what Congress wants or what the public wants.
To be clear, that doesn’t mean things couldn’t be worse. If Trump is reelected, there’s a reasonable chance that Justice Stephen G. Breyer — who will be 86 years old by the end of the next presidential term — will step down because of illness or age. That would give conservatives a 7-2 majority on the court, and who knows how many decades it would be before liberals find themselves in the majority again.
With six conservatives, let alone seven, the coming right-wing rampage across the landscape of the law will make it hard for anyone to forget how important the Supreme Court is. It’s just too bad that’s what it will take to open everyone’s eyes.