Could a post-Scalia court restore Campaign Finance Sanity & pull back from Plutocracy?

By Juan Cole | (Informed Comment) | – –

There is no guarantee that the successor to the late Justice Antonin Scalia will be a liberal. But only if Cruz wins the presidency can we expect a nominee as hard right as Scalia. In all likelihood, the court has just shifted at least somewhat to the left. And that shift could be very good news for the country’s politics.

Much depends on whether Obama can get enough Republican senators to buck Majority Leader Mitch McConnell and confirm a nominee this year. (Some, like Lindsey Graham (R-SC), likely would on principle, since they tend to believe that the president has a right to his pick). Absent that, the rest will depend on the outcome of the November election. In my own view, that election is the Democrats’ to lose, since the GOP horror show has almost certainly chased away swing vote groups such as Latinos, soccer moms, urban Catholics, workers, etc. But life is unpredictable.

American politics in my view is off-kilter because of the conservative Reagan-Bush court we have had for decades. In the two-centuries long class struggle between the very rich and the rest of Americans, during the past three decades the rest of Americans have been soundly trounced. You’d have to go back to the Roaring Twenties or the age of Robber Barons in the 19th century to find an America so polarized by wealth, with so many excluded from any real power or access to economic opportunity. In Eisenhower’s America, the top 1% had 25% of the privately held wealth. They now have upwards of 40%. Finance was perhaps 10% of the economy. It is now 20%. The top 1% did not take home 20% of the nation’s earnings every month back then. And our politics was not bought and sold by a handful of billionaires. The Supreme Court has not been innocent in all this.

A 2008 Supreme Court decision allowing Indiana to require a photo ID to vote led to dozens of Republican legislatures passing such unfair laws. Political scientists have demonstrated that these laws adversely affect the ability of minorities, the poor, the aged and other Democratic constituencies to vote. The GOP excuse for these laws, that they are necessary to prevent voter fraud, has been shown to be completely without foundation. There is no voter fraud to speak of in the US, and what little it is does not take the form of voting under a false identity.

Comedian John Oliver over at HBO had some fun with Republican obscurantism on the voting issue last night.

The 2008 Crawford v. Marion County Election Board decision was reached with a 6-3 majority. But if we could get a new justice who realized that the voter ID laws are in fact an unfair burden for people, and could change the mind of one of the remaining 5 who voted to allow them in 2008, we might be able to overturn these laws as unconstitutional. (You have to take off work to go get an ID, which many Americans cannot afford to do; if they ride the bus to work they don’t have a driver’s license; the laws are just a way to confine the electorate to old rich white people).

Or consider gerrymandering. The reason the House of Representatives is in the hands of the Republicans today even though more votes were cast overall for Democratic members of Congress by the public is because of gerrymandering by state legislators. Texas is a notorious example. But in seven states, now, the public has used referendums to institute neutral commissions to draw districts. The Arizona legislature challenged the constitutionality of taking these decisions out of the hands of the state lawmakers, but even the Roberts court turned back the challenge. Scalia, Roberts, Thomas and Alito dissented. Any further appointment by a Democratic president will strengthen the majority on this issue. Even just striking down scams like dividing Austin up into 8 voting districts attached to rural counties, or the snakes, salamanders and other strange animals drawn around minority districts in places like the Carolinas, would take the country toward greater equity and justice.

The notorious Citizens United ruling of 2010, orchestrated by the billionaires’ best friend, John Roberts, arguably ruined the politics of this country and made us altogether into a plutocracy.

The craziness of our political season stems in part from equating money to speech and removing restrictions on campaign donations. In the old days, because of more effective campaign finance rules, in order to run for president you had to get the backing of a whole gaggle of people. If you said a few embarrassing things, as Donald Trump has (in spades!), in the old days the gaggle would peel away. Since the rules didn’t allow you just to buy the election by yourself, you’d be forced to drop out if even your backers thought you were batcrap crazy. But now, with billionaires self-financing or with billionaires putting in dark money, the guano insane can stay in the race indefinitely. In some instances, addled plutocrats like Sheldon Adelson install a voice pull-string in their puppet candidates (Robo Rubio is Adelson’s toy), forcing them to parrot nonsensical sentences over and over again. Or Haim Saban makes Hillary give that ridiculous AIPAC speech over and over again about Israel, which bears no resemblance to reality.

Citzens United was another one of those 5-4 decisions, and a new, less hard line justice would allow the court to chip away at it and even just overturn it.

There is no guarantee that the court can or will take a new direction now. But it could. And if it does, then we 99% could maybe get our country back.

12 Responses

  1. It will remain to be seen what happens. I can not say I’m unhappy Scalia is dead. he wasn’t that good for women’s rights and a whole lot of other people’s either.

    if a new judge is appointed who is not a remake of Scalia things may improve in the Supreme Court. On the other hand the U.S.A. is so far gone, it is doubtful it can come back from the abyss.

    • I could not agree more! What a blessing.
      We need more of this intelligent, sane and well balanced opinion in our country

  2. There is certainly opportunity if the means is found.

    I have seen many plainly valid civil rights cases denied even a trial by the right wing federal courts, all denied hearing by the Supreme Court, even where wrongdoers had already confessed under oath, where the victims were charities, where there was no conceivable public interest to the contrary, and where every law and legal precedent required the case to proceed to vindicate civil rights. There is no hope of justice for the people until the entire judicial branch is replaced and reconstituted. That will not happen until the Constitution is rewritten to protect elections, mass media, and the people from economic tyranny. And that cannot be done peacefully because the right wing already controls the mass media and elections. We may hope for reform, but it is injurious to expect it: our only hope lies in the uprising of patriots to throw off the oligarchy as we did in 1776.

    • Unfortunately, Erik, your analysis and prognosis are correct. The Constitution has for most of its history been open to interpretation according to the biases of the court. In too many instances, majority decisions have resulted in countless victims suffering cruel travesties of injustice. Given the apathy that is rampant among the citizenry the hope of an uprising is beyond remote.

    • An insurgency that effectively targets the oligarchs and mass media might work better. Geriatric suicide bombers supplied by dual agents in the military. Virtual secession movements in VT, NH, CA, and WA.

  3. I think Obama’s course is clear – quickly nominate the best non-partisan jurist he can find, because of these facts;

    Obama will want to nominate someone.
    The Republicans cannot hope for a right-leaning nomination.
    The Democrats ambitions are served by any non right-leaning nomination.
    Prolonged obstruction will harm Republicans even more in upcoming elections and then a Democratic President would nominate not just this one but possibly another left leaning justice.

    Thus I think the odds are pretty good Obama will nominate someone within, oh, two weeks.

    It’s in his and the Republicans interest and it will be acceptable to Democrats to have Scalia replaced by a non-right leaning justice.

  4. Regarding the Voter ID case, I think it’s important to view the case in the context of other past and future cases. With the striking of the Voting Rights act, Alabama moved forward with its voter ID law, and then closed almost all the DMVs where Black populations are most congregated. In Texas, a case has moved to the US Supreme Court arguing that representatives should be apportioned based on registered voters, not the number of people in a district.

    To me, this is a clear piece-by-piece strategy by racist America to repeal the rights of non-Whites, to this point aided and abetted by the Court.

  5. You hit is out of the park. Well done. Kudos to John Oliver for his always spot on comments.

  6. There is no guarantee that the successor to the late Justice Antonin Scalia will be a liberal.

    Given Obama’s record and the makeup of the senate, the odds are very likely heavily against Scalia’s replacement being a liberal.

  7. Remember David Souter? At the time he was as Rightwing as they come. Then he got nominated and approved to the Supreme Court. The RW was not happy with that choice.

  8. Pure fantasy!
    Senator Graham was one of the first on T V last night spouting the party line of “NO”, and where do you get the idea he is principled?
    There will be no cross over of Republican Senators and the Republicans will use this as a Battle cry for the rest of the election.
    So Obama has no chance of getting anyone on the court. Dose anyone think things will get better after the election? Hillary’s choice will be as pro 1% as any of the Republicans.
    The Plutocracy has been here since Bill Clinton and there is no end in sight.

Comments are closed.