The Ralph Nader Supreme Court

The U.S. Supreme Court was a progressive force for the second half of the 20th century, but so far in this century, it’s been a reactionary force. It has enabled religious favoritism (2014’s Burwell v. Hobby Lobby,) voter suppression (2013’s Shelby County v. Holder), corporate corruption of elections (2010’s Citizens United v. Federal Election Commission) and easy gun possession (2008’s District of Columbia v. Heller).

This court could be called the Bush Court, for George W. appointed John Roberts and Samuel Alito. It could be called the Trump Court, for Donald appointed Neil Gorsuch and Brett Kavanaugh. But it could also be called the Nader Court, for Ralph did as much as anyone to insure the rightward tilt of the Supremes.

The present court is not an accidental byproduct of Nader’s presidential campaigns; it was an entirely predictable result of decisions Nader consciously made. And it’s a warning to anyone who believes that voting for a third party or abstaining from voting is a political gesture without consequences.

In mid-October of 2000, the polls made clear that the presidential race between Bush and Al Gore was going to be very close in several swing states and that Nader’s voters could deprive the Democrat of a winning margin. It was just as clear that the next president would have a good chance of appointing two Supreme Court justices. At that point, Nader could have asked his supporters in states such as Florida and New Hampshire to vote for Gore and for his supporters in other states to vote their conscience.

If he had done that, Gore would have won not only the popular vote (which he did anyway) but also the electoral college. If Nader had done that, the Supreme Court would have had a 6-3 liberal majority when Obama became president in 2008 instead of a 5-4 conservative majority. If Nader had done that, there never would have been a War in Iraq, and the War in Afghanistan would have been prosecuted without torturing prisoners.

If Nader had done that, he would have done what Bernie Sanders did after losing his primary fights against Hillary Clinton and Joe Biden. He would have been a stand-up guy who acknowledged his policy differences with the Democratic nominees, while emphasizing how much better the country would be with those nominees as president than with the Republican alternatives.

Nader did none of that. For whatever reason—political purity, ego or grudge—he led the Green Party to its doomed finale and drew away enough left-wing votes to insure a conservative Supreme Court, a War in Iraq and a further slashing of the New Deal safety net. In Florida, where Bush won by 447 votes, Nader drew 97,488 votes away from Gore. In New Hampshire, where Bush won by 7, 211 votes, Nader drew 22,198 votes away from Gore. Florida by itself would have given Gore the victory.

Green Party apologists say that you can’t assume that all of their votes would have gone to Gore. But you don’t have to assume that. If only half had gone to Gore and the other half had abstained, it would have been enough. Those apologists even say that there was no substantial differences between Bush and Gore in 2000—or between Clinton and Trump in 2016.

If we had had 20 years of a center-left administrations under presidents Gore, Obama and Clinton, that wouldn’t have been better than the wars, recessions, tax-cut giveaways, ballooning deficits, eroding civil liberties, worsening environment and reactionary judiciary of the Bush and Trump presidencies? Does anyone really believe that now?

Maybe you can believe that if you’re a white male in the bubble of a college town or a well-heeled urban neighborhood. If so, maybe it’s more important to you to make a noble political gesture, no matter what the ramifications. But if you live in a working-class neighborhood—especially if you’re female, black, brown or gay—you can’t afford the luxury of a protest vote. The results of right-wing government fall too hard upon your head.

Underlying this dynamic is a failure to distinguish between intentions and consequences. Just because you intended to make this a better world doesn’t mean that you have made this a better world. If you care about climate change, for example, voting for a third-party candidate with the most progressive platform on the issue may make you feel good, but it doesn’t improve the environment. In fact, it worsens it, if you end up helping to elect Bush or Trump. The same with racial justice. The same with any other issue you want to mention.

So you have to ask yourself: What do I really care about? Is the most important thing feeling good about myself? Or is the most important thing improving the lives of my fellow citizens—especially the most vulnerable?

The current manifestation of this problem is the Antifa and its allies. There are persistent rumors that these groups are being goaded on by undercover right-wing agents provacateurs. It wouldn’t be surprising if this were true; after all, security forces used those tactics in the ’60s and ’70s. But there’s no actual proof yet, so let’s leave that question aside.

Let’s take the Antifa people at their word, that they’re genuinely supportive of racial justice and opposed to the fascism of the alt-right. Those are perfectly reasonable goals. But one has to ask: are their actions actually advancing those goals? The evidence so far is a resounding no.

In every city across the nation, a recurring pattern has emerged. The protests of the police violence against George Floyd, Breonna Taylor, Ahmaud Arbery and Jacob Blake are disciplined and peaceful from early evening to late evening. But around 11 pm or midnight, when the multi-generational families have gone home, others come out of the woodwork and retaliate against racist violence by smashing store windows, burning cars and municipal buildings and throwing stones and firecrackers at police.

And what is the result of this strategy? A starring role on Fox News and at the Republican National Convention. Far from intimidating the alt-right and their Republican allies, Antifa and other groups are supplying them with all the ammunition they need. As my friend in Portland, Ore., put it, “Trump sent in his Homeland Security forces to stir up the violence and looting, and when they had enough footage for Trump’s campaign ads, they pulled out again.”

Trump isn’t scared of the Antifa. He doesn’t really care about cities or government buildings. But he’s scared to death of Joe Biden, and he’s delighted to have the Antifa help him out in that fight. You can always tell how effective you’re being by how your enemy responds. Notice that Trump keeps threatening to go in and stop the looting but never actually does. That’s because the looting helps him. Notice too that the biggest contributors to Kanye West’s quixotic presidential campaign are all Republican fat cats.

Not voting is pretty much the same thing as voting for a third-party candidate. It’s throwing away a vote that could change the lives of millions of working-class families over the next four years. It’s abdicating responsibility for making an important decision. Sure, neither candidate will perfectly align with your personal policy preferences. If each of us insisted on such an alignment, every election would have 100 million different write-in votes.

There is a solution to this tension between voting your conscience and voting to help your fellow citizens. It’s called ranked-choice voting, and it would allow you to vote for a first choice, a second choice and so on. Computers would weight the votes accordingly and more accurately determine the consensus of the voters. The system is currently used for national elections in Ireland and Australia and for local elections in Scotland, New Zealand and the U.S. It would allow you to give Ralph Nader your first vote and Al Gore your second vote. That way you could make clear your preferences without sabotaging humane government.

We don’t have ranked-choice voting for federal elections now, though we have a less efficient way of doing something similar. That’s called the two-party system with contested primaries. In this system, Sanders and Biden can vie for the nomination of the left-wing party or Trump and Marco Rubio can vie for the nomination of the right-wing party. You get a chance to vote your conscience in the primary and then vote for your fellow citizens in the general election.

For this system to work, though, you have to have someone like Sanders, who’s willing to play by the rules. Twice he’s made his case for very progressive policies, and twice he’s come up a little short in the primary. But he was able to move the conversation to the left, and he was willing to wholeheartedly support a candidate that he had disagreements with. This was very different from what Nader did. Sanders helped his own cause with his approach, while Nader undermined his. And we wound up with the Ralph Nader Supreme Court.