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.
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