Jeffrey Toobin in The New Yorker salivates at the prospect of a President Hillary Clinton loading the Supreme Court with a bunch of zealous, ideological progressives:
For the first time in decades, there is now a realistic chance that the Supreme Court will become an engine of progressive change rather than an obstacle to it. “Liberals in the academy are now devising constitutional theories with an eye on the composition of the Court,” Justin Driver said. The hopes for a liberal Court will begin—or, just as certainly, end—with the results on Election Day.
Of course there have been times when conservative Republicans have bent the spirit or the letter of the law in pursuit of their own obsessions – cracking down too restrictively on voting rights stands as an obvious, shameful example. But liberal excitement about getting to stamp their mark on the makeup of the Supreme Court seems to extend far beyond merely righting these examples of conservative overreach:
The liberal wish list expands rapidly from there—limited only by the imaginations of law professors, advocates, and the Justices themselves. One possibility is that the Court might recognize a constitutional right to counsel in civil cases. (Currently, only criminal defendants are guaranteed legal representation.) In criminal law, the Court might adopt the idea, which Sotomayor has suggested, that the Constitution forbids incarcerating individuals who are too poor to pay fines. Several scholars have proposed a constitutional right to education, which might force increased funding for poor districts, or, even more speculatively, a right to a living wage.
These goals range from the worthy (no longer imprisoning people who are so poor that they have no prospect of paying large court fines) through the interesting-but-unworkable, all the way to the downright authoritarian and unconstitutional (a federal “living wage”).
But while the Supreme Court is the third and equal branch of government, activists on all sides of the political spectrum are playing with fire when they seek to co-opt the court to be an “engine of progressive change” (or resistance to that change) where they cannot muster popular support to achieve their goals through Congress or, if necessary, amend the Constitution.
The Supreme Court has long been politicised, and American democracy has suffered as a result. And while it may be wishful thinking that the tit-for-tat partisan drama will come to an end any time soon, liberals in particular should be careful. For their side is already ascendant or even victorious on many fronts in the culture war. Social changes which would have been unthinkable three decades ago are now a tangible reality – often a positive thing, sometimes less so. Seeking to gain the last 10% of their social objectives by turning the screws on American conservatives through the Supreme Court will only foster resentment and sow division.
Perhaps liberals genuinely don’t care. Perhaps they are fine with the idea of achieving their goals by circumventing the political process and pushing their “living constitution” interpretations to the limit of coherency. But there will be a backlash, just as there are always consequences when political elites of any stripe push stubbornly ahead with their agendas while forgetting to bring the country with them.
Support Semi-Partisan Politics with a one-time or recurring donation:
Agree with this article? Violently disagree? Scroll down to leave a comment.
Follow Semi-Partisan Politics on Twitter, Facebook and Medium.
While I agree that liberals should not be overly gleeful about more reliable liberal judge joining the court, I don’t think you can really say that liberals are politicizing the court. The court has always been politicized, but has been shielded from politicization by the life-long appointment of justices. Many justices have moved to the center as they’ve served, the latest most obvious example is Chief Justice John Roberts who voted to sustain Obamacare outraging many conservatives. A greater threat to the Supreme Court is the call for a limit on the number of years a justice can serve.
Most of the justices, notable exceptions, perhaps are Alito and Thomas, realize the importance of compromise to a democracy and the social development needed to sustain changes. The difference between how the we have accepted abortion and marriage equality is significant with some saying Roe v. Wade came too soon whereas marriage equality was built through the courts so that by the time the Supreme Court ruled, it was already widely accepted. We’ll see.
At any rate. A full court is something to celebrate regardless of ideological alignment.
LikeLiked by 1 person