As we all know by now, President Donald Trump nominated Neil Gorsuch to fill the Supreme Court seat vacated by the death of Antonin Scalia last September. Gorsuch is a conservative “originalist” (read: reactionary with intellectual pretensions) and he will move an already conservative court further to the right. Twitter went ablaze with progressive outrage and, a few minutes after Trump’s announcements, protesters were out in the streets. Democrats promised to mount a spirited opposition to Trump’s nominee, in part as retaliation for the GOP’s unprecedented yearlong obstruction of President Obama’s pick, Merrick Garland. As encouraging as the reaction to Gorsuch’s nomination might be, all of this fanfare from the left begs the question: where was all this passion when it actually could have changed the makeup of the judiciary? At Trump’s urging, the Senate is likely to employ the nuclear option, eliminating the filibuster for Supreme Court nominees and rendering all Democratic efforts to block Gorsuch moot. The filibuster for appointees to the lower court is already a thing of the past, thanks to Harry Reid. Thus, the sound and the fury of the left will likely amount to nothing. A generation of conservative dominance of the judiciary is at hand. It didn’t have to be this way.
The 2016 presidential election afforded progressives an opportunity to usher in a generation of liberal jurisprudence. But the Supreme Court did not motivate liberals and progressives to vote in the same way it motivated conservatives. An ABC exit poll reveals that of the 21% of voters who claimed the Supreme Court was “the most important factor” in their decision, 57% supported Trump while 40% supported Hillary Clinton. Pew polling from shortly before the 2016 election showed that 77% of “conservative Republicans,” compared to 69% of “self-described liberal Democrats and Democratic leaners” viewed the Supreme Court as “important to their vote.” Polls of liberals and conservatives in previous elections reflect a similar disparity, with liberals consistently placing less value on Supreme Court appointments than conservatives. There is no way to guarantee that, had liberals cared more about the judiciary, we wouldn’t be confronting the prospect of a Justice Gorsuch today. But in a close election, every percentage point equals millions of votes and it is therefore possible that the issue of Supreme Court appointments played a crucial role in voter turnout on both sides. In particular, it likely contributed to the decision of Republicans-particularly social conservatives-initially skeptical of Trump to >vote for him anyway, because he promised to appoint “originalist” justices to the Supreme Court that would quash gun control and overturn Roe v. Wade.
Why didn’t even the prospect of a more liberal Supreme Court prove similarly motivating for the left? The lack of weight progressives place on Supreme Court appointments is a puzzling phenomenon considering the far-reaching impact of the judiciary on progressive priorities. Take, for instance, the “top priorities of millennials according to Pew in which only 45% of millennials considered Supreme Court appointments “very important” to their vote. Perhaps this factor, along with a lack of enthusiasm for Democratic nominee Hillary Clinton, goes some way towards explaining the low turnout of a demographic considered reliably progressive on a range of key issues.
2016 Issue Importance Amongst 18-29 Year Olds
· Supreme Court appointments: 45%
· Social Security: 57%
· Terrorism: 68%
· Health care: 66%
· Foreign policy: 70%
· Trade policy: 50%
· Immigration: 68%
· Education: 67%
· Gun policy: 71%
· Economy: 80%
· Abortion: 46%
· Environment: 54%
· Treatment of racial and ethnic minorities: 75%
· Treatment of gay, lesbian and transgender people: 50%
Percent of registered voters saying each is “very important” to their vote in 2016. (Chart courtesy of Ball State Daily)
Millennials’ relative lack of concern for the Supreme Court is baffling considering that a conservative judiciary will have a detrimental impact on the issues they claim to value most. Gun policy (85%) is now a lost cause for liberals on a national level (the bluest of blue states may be an exception), with federal and state legislatures, along with the judiciary, enthralled with the NRA. On “treatment of ethnic minorities” (75%), Trump’s judicial appointments will likely rule in favor of travel bans and actively work to disenfranchise minorities. A conservative judiciary is also likely to rubber stamp Trump and Attorney General Jeff Sessions’ inhumane immigration (68%) policies, just as it stalled into oblivion President Obama’s effort to shield the family members of DREAMERS from deportation.
As for the environment (54%), a matter of particular importance to progressive millennials, the judiciary has the power to stay and strike down climate regulations that limit greenhouse gas emissions, as it did under President Obama and will likely continue to do under future Democratic presidents long after President Trump departs the White House. And, although only 46% of millennials listed abortion as “very important” to their vote, they will not take kindly to the possible overturning of Roe v. Wade, which would deprive millions of disproportionately poor and/or minority women of their reproductive rights.
A Trumpian judiciary is unlikely to limit executive overreach on foreign policy (70%), including the growth of the surveillance state, more drone strikes, renewed use of black sites and perhaps even a resumption of enhanced interrogation techniques (read: torture). By ruling against financial regulations and allowing big banks to operate unchecked, the Supreme Court will place the economy (80%) at great risk. And, of course, the Supreme Court can and will oppose campaign finance reform (not listed in the Pew survey, but a priority for many young progressives), as it did with Citizens United and a series of related rulings that opened the floodgates for unlimited corporate spending in elections.
Given the Supreme Court impacts so many of the issues progressives claim to care most about, why do they consistently assign it less importance than conservatives? Perhaps progressives are inherently disinclined to pursue change through institutions, preferring grassroots organizing and various forms of activism. But alas, all the protesting in the world cannot prevent Donald Trump from stacking the Supreme Court and the lower courts with reactionaries (sorry, “originalists”) who, unlike legislators, remain in power for life. That means that if Bernie Sanders or some other progressive becomes president in 2020 or 2024, they may be hamstrung by a judiciary hellbent on blocking all progress. And they will have the authority to do it, no matter how many activists take to the streets in righteous (and justified) outrage.
As things stand, we have to hope Clinton, Obama and even Bush-era judges on the Supreme Court and the district courts can act as a bulwark against President Trump’s most extreme, authoritarian impulses. But even in a best-case scenario (likely to resemble Paul Ryan’s Randian wet dream), progressives lose. Even assuming, to put it indelicately, Ruth Bader Ginsburg, Stephen Breyer and Anthony Kennedy live another eight years, Neil Gorsuch will maintain the right-wing status quo of a Roberts Court that has yielded no shortage of ghastly rulings over the past eight years. If even one of the liberal or “moderate” justices dies or steps down, that means President Donald Trump could further transform the courts in his image—or rather, the image of the conservatives who demand far-right justices as their pound of flesh from an ideologically amorphous populist demagogue. Votes, in addition to protests, are needed to avert this nightmare outcome, even if Democratic nominees of the future aren’t all the progressive saviors of our dreams.
Supreme Court rulings and jurisprudence may not be as sexy (or as comprehensible) as heartfelt activism, but they impact the issues we care most about. In many ways, the makeup of the court sets the horizon for progressive ambitions. And whether he holds the office of the Presidency for four years or eight, Trump’s judicial nominees will remain to haunt progressives down the line. When the rising generation of millennials control the levels of power in the legislature, even the presidency, we may be forced to contend with far-right judges selected by and reflecting the values of Donald Trump and the party that elected him. Our progressive ambitions may be stymied all because we didn’t grasp the importance of seizing the judiciary at a pivotal moment in history.
In the years to come, historians will likely expound on the question of how a complacent majority of the population favoring liberal policies allowed a determined minority of the population favoring conservative policies to win a presidential election in a year when the Supreme Court hung in the balance. They will ask how millennials, with the numbers and inclination to shift the country decisively to the left, instead allowed the forces of reaction to emerge triumphant. The protests thus far and protests yet to come, while vital and historic, will not wipe the stain of this monumental error, this terrible missed opportunity, from the history books. It will not erase the devastating human impact of conservative judicial decisions on society’s most vulnerable.
But perhaps the horrors of unconstrained conservative jurisprudence will serve as a cautionary tale. Perhaps if Trump’s court strikes down Roe v. Wade, eviscerates the social safety net, removes financial regulations, rules against protections for LGBTQ individuals, further dismantles the Voting Rights Act and turns the planet into the carbon-desiccated cesspool of ExxonMobil’s dreams, progressives will learn to value the judiciary as much as conservatives do. Only by seizing control of institutions, including the judiciary, can progressive maximize the impact of their activism. Let this be a guiding principle in future elections.