The most Left Wing Supreme Court in a Generation? Sec. Clinton’s most important Progressive Prospect

By Juan Cole | (Informed Comment) | – –

Progressives who had backed Bernie Sanders are understandably upset about the prospect of a Clinton presidency. Some put their hopes in the Democratic Party platform, where Bernie supporters won on issues like a $15 minimum wage. But party platforms don’t mean much in the end.

It is likely that if she wins the presidency, the most progressive thing Sec. Clinton will do will be to appoint a successor to Antonin Scalia who is substantially to his left (since the Neanderthals are extinct, it would be hard to find someone to his right). That appointment would shift the court from a 5-4 conservative majority to a 5-4 liberal majority. Most likely if the Republicans have not moved on President Obama’s nominee, Merrick Garland, by Nov. 4, Obama will withdraw the nomination so as to let Clinton have her own pick. If Trump takes the drubbing we expect, she could well have a Democratic senate and so could afford to appoint someone to Garland’s left.

Since Justice Clarence Thomas is making noises about retiring, we could end up with a 6-3 liberal court.

We haven’t seen anything like that since Tricky Dick Nixon appointed four justices and shifted the court to conservatism in the early 1970s. Before then, SCOTUS had challenged racial discrimination, struck down attempts by states to ban contraceptives, ruled in favor of women’s equality with men, and so on an so forth.

A more liberal court could well overturn Citizens United. Because of gerrymandering and corruption, the GOP may have a lock on a House majority, so getting rid of this ruling, which authorizes even more big money in politics, won’t be easy to do legislatively. But SCOTUS could just find a case that would allow it to repudiate Citizens United. 5-4 decisions are never a very strong precedent, and often get reversed over time. If the court goes 6-3 liberal and stays that way for a while, a lot of close decisions where Scalia dragged the court to the far right might start falling one after another.

A more liberal Supreme Court will likely reverse the rush of the Deep South to put in voter i.d. laws (the 21st century of the Latin tests they used to administer to prospective Black voters).

More affirmative action in university admissions policies may come to be allowed. This is important because a university education is a ticket to membership in the country’s elite and to higher lifetime earnings. Without a high powered education being available to minorities, we wouldn’t have gotten a Barack Obama as president.

Unconstitutional restrictions on a woman’s right to choose will be struck down.

Here are some Scalia-led rulings that could fall.

Things won’t change overnight, but we could be in for a return to a situation more like the 1950s and 1960s, when the Court was in the vanguard of some progressive change in the country, rather than a brake on progress.

For those Bernie Sanders supporters who can’t imagine a center-right Clinton presidency doing anything progressive, contemplating the potential changes on the Supreme Court could help salve the injury of loss.


Related video added by Juan Cole:

CNN: “Bernie Sanders: Election is about the American people”

25 Responses

  1. I’m beginning to think Clinton should have made Sanders the VP pick just to shut up his hardcore supporters. Although I wanted him to beat Clinton, my only concern now is to stop the enshrining of a White supremacist cult. I personally think the VP slot under normal presidents (instead of morons like W and Trump) is meaningless, but then meaningless gestures are what that particular group of Sanders supporters is all about.

  2. if you stay home, vote 3rd party, or write in Bernie, you help Trump win. Trump will be much worse than the status quo,

  3. Support for Hillary is, to use an old expression, a mile wide and an inch thick. With all of her, in my opinion, justified negatives the big question is….Will she inspire blacks, Bernie’s Babies and Latinos to stand in line to vote for her? I think the fear of what Trump is proposing might push the minorities and Bernie’s supporters to vote, not so much FOR Hillary, as AGAINST Trump.

    As Bette Davis said…”Fasten your seatblets, it’s going to be a bumpy ride.”

  4. Cheryl Llera

    The Clintons have a history of supporting DLC centrist pukes. You won’t see any true liberals like William O’ Douglas nominated

    • Bill Clinton appointed Ruth Bader Ginsberg and Stephen Breyer to the Supreme Court. Ginsberg is a very strong liberal while Breyer votes with the liberals the vast majority of the time.

  5. There is no democracy in America. A gigantic neoconservative pincer movement is in operation, the purpose of which is to frighten and corral the American voters by causing (or at least have the cover of such a conceivable cause) them to feel existentially obligated to vote for Clinton contra the specter of a Putin-backed American proxy in the politically holographic (hollow) figure of Donald Trump, resulting in a Clinton presidential win (pseudo-democratic coup) as fait accompli (or the cover of the argument as such in the case of outright total electoral fraud).

  6. Scotus appointment as “salve” won’t happen from either direction – hrc won’t appoint a leftist justice, and true dems won’t be fooled again.
    A vote for hrc is cement around the shoes of peace, freedoms and social progress; dnc is the Easr River.

  7. The Clintons have a long history of opposition to progressives and other people and entities on the left. There is no reason to believe or hope for Hillary appointing a justice to the supreme (?) court anywhere near left of center. Nor will she be likely to appoint any justice who might be a threat to Citizens United. With Hillary in alliance with neocons, the Koch Brothers, and the Israel Lobby more wars and regime changes would be a safer bet.

  8. “A more liberal court could well overturn Citizens United.”

    That’s a nice dream. You may be confusing liberal with progressive. You don’t fundraise hundreds of millions from free-market-purist corporate america and then just flip flop on a key issue like campaign finance. Dem’s are talking the talk now because Clinton’s numbers are sliding and they’re scared of losing to Trump. Obama talked the talk too (and far better than Hillary), as did MIchelle, as did Bernie, and sadly, even Trump. Without big spending and pay-to-play networks of influence, Hillary would be dead in the water.

    Clinton will appoint judges who are left on social-justice issues, to the Democratic party’s credit, and staunchly pro-status-quo on economic-justice. Any concessions to progressive needs, outside of non-economic social issues, will happen if and only if her sponsors think it is appropriate. To what degree they would be inconvenienced by a Trump presidency is an open question. I have a feeling, not as much as the inconvenience of adopting the full range of Sanders proposals (regardless of what goes into the platform).

    The voters get this quite clearly this year. It took a decade and a half of glaring incompetence to pull the curtain back but here we are. The only way back is a competently executed bait-and-switch, which is now under way.

    • FDR, Teddy Roosevelt and JFK all came from families that were part of the elite. None of them had the requirement to work one day of their lives but could have just lived off their family money and their investments. There are a number of millionaires and some billionaires who support social justice and greater economic equality. Try learning a little history and try not to over generalize.

      • I think I’m being pretty specific. The Clintons are the all-time champions of raising money from exactly those less-than-benevolent subsections of the elite who benefit from government favoritism. While this gives them a certain amount of credit in terms of political savvy, it does NOT do so in terms of their progressive bona-fides, which I was talking aobut. It is not impossible that they will be *forced* to adopt progressive policies, but the chances of that happening are better with just about anyone else.

        Understand: I am saying this from the point of view of a progressive. From this point of view, the “electability” argument for the lesser-evil vote is now deader than a doornail, and it’s time my liberal friends recognized it.

  9. For me it’s Clinton’s horrible foreign policy with the penchant for military intervention versus her tolerable domestic policy, including the SCOTUS issue. All this against the neo-fascism of the Republicans. I keep asking myself why can’t we have an alternative to the two. I’m tired of the old line that a vote for a third party is a vote for that that horrible Republican or that horrible Democrat. Bernie has lost and his ideas will be buried by the machine. Like you said, platforms are almost meaningless. I feel it’s time to end this attempt at dominating the world. I feel it’s time to take the environment seriously and adopt a carbon tax and ban fracking. Hillary supporters are just worshiping at the cult of personality.

    • “Understand: I am saying this from the point of view of a progressive. From this point of view, the “electability” argument for the lesser-evil vote is now deader than a doornail, and it’s time my liberal friends recognized it.”

      Trump is indeed an existential menace. Whatever one might think of Clinton’s shenanigans, she’s not that. What matters is answering the question as to how the Donald is to be denied the Presidency in a fashion consistent with legal norms.

      He can be defeated by the people in November and likely will be, but relying on that is not good enough. Is there a psychiatrist in the house?

  10. Bill Clinton put Ruth Bader Ginsburg and Stephen Breyer on the court. A couple more like those two, please.

  11. Okay Juan, time for you to weigh in; we are both history professors and it’s go time with the willful ignoramuses who equate being hip with skepticism or both-siderism. Dissent and skepticism are good – they are what has given rise to the great peoples movements of this country. However . . .

    Hilary may be flawed, she may be corrupt, she may be a part of a system we do not like that advantages the advantaged and disenfranchises the disenfranchised. But my neighbors have come to depend on Obamacare. Their daughters have come to depend on local Planned Parenthoods and womens’ clinics. The US thrives better as a diverse inclusive nation that as a gated community. Most of all, she is a solid if sometimes problematic bureaucrat who has experience in working government and engaging with the world. She is reasonably intelligent and informed. And I say this as one who has never liked the Clintons, was a Bernie supporter hard core, and voted Jill Stein in ‘12.

    But as for the other side, well, we have heard Trump’s Weltanschauung before (and yes, I use the German deliberately): we fought it on the beaches of Normandy, in the forests of Belgium, in the mountains of Italy. We buried people fighting against it in north African deserts and in French cow pastures. Hell, we fought and died for it in this country, from Bull Run to Appamatox Courthouse. It was the lie that people who are in any way different need to be excluded, deported, ethnically cleansed, enslaved, or shoved into ovens. What are people thinking? Who in the hell do they want? I will take the corrupt functionary over the mentally unhinged, unstable vulgarian with a microphone in his hand, nothing in his head, and his finger on the button. I trust Hillary to relinquish power if she loses in four years. Tell me with a straight face the same thing about the opposition.

    Hmm, let’s see, who do I want? A possibly corrupt but somewhat competent and experienced former first lady? Or someone who incites to violence openly, who lies as though it were second nature, who is boastfully libertine, espouses war crimes as policy, calls for ethnic cleansing in this country, is proudly an open religious and racial bigot, called for the execution of six African American kids in a full page NYT ad who were later acquitted, believes ignorance a virtue, will kick our treaties to shit, will repeal as much of the social safety net as possible, calls for Russia to interfere in a democratic election (and may well be in their pocket), has pursued cruel and duplicitous business practices, will pack the Supreme Court with gods know what, and believes the existential crisis of global climate change is a hoax invented by the Chinese?

    Gosh, that’s a real hard one, could you run that by me again. For us lefties Hillary is far from perfect, but a Trump victory will set the left back . . . well, forever if he decides to go all martial law on us. Oh . . he won’t? Well thanks – I’m reassured. This is the danger of historical ignorance – why oh why is it so bad for Republicans to be ignorant of science, but okay for some on the left to be a know-nothing when it comes to history? Have people not heard this before? Have they at very least not seen the news reels? A Riefenstahl movie? Heard Laurence Olivier’s voice over on the World at War? Come on people: It’s not hip. It’s not cute. It’s not funny – any more than is the corn-pone humor of the ignorant right, often used to dismiss concerns of the left. Trump is an existential menace, plain and simple, in the way Clinton is not. And if you want to argue against that, then I’d like to sell you some Trump real estate in coastal Florida, since your candidate presumably believes there will be no sea level rise (hey, put your money where your belief is!).

    And as always, pars Republicana delenda est!

  12. Professor Cole, I am absolutely dumbfounded at your continuing belief in the Clintons ( like shoes, they come in a pair – Oh, what a pair)! After NAFTA, which has destroyed Mexico’s rural economy and help turn Mexico into a failed Narco State, the deregulation of the Banks and not regulating derivatives which lead directly to the crash of 08′. Hillary voting for and continuing to support our Imperialistic oil wars, their dishonesty and lying and mind boggling corruption, their support for the rape and pillage of the planet for the short term profit of the 1%.
    After all this and much more you still think Hillary is going the change and appoint “Liberals” to the supreme Court!
    Citizen’s United gave the 1% the legal cover to buy our Government and you think Hillary is going to do anything to upset that? One thing you can say about the Clintons is when you buy them they deliver so the chance of anything but a plutocrat friendly appointment is about nil.
    The Clintons will do what the Clintons have always done: Work for the 1% and the Clintons.
    And a note on Neanderthals, They lived peacefully within their environment for a few hindered thousand years until us Homo Sapiens showed up, then they went extinct.
    We Homo Sapiens may be the smartest monkeys on the third rock from the Sun, but we ae also the most violent, greediest and most self destructive.
    Welcome to the Monkey House, Professor Cole.

    • I agree with many of your points but you are ignorant of history. We heard this shit from Trump in 1930s Germany. When people threaten to destroy our democracy through neo-fascism, rip up alliances, practice torture, and a gazillion other horrors, they also threaten to negate the sacrifices of the dead from Lexington to Gettysburg, from Normandy to Iwo Jima and beyond.

      I am more left than you – I despise the Clintons. But government and democracy is not perfect – it can be vicious, brutal, and horrible, and yes, Hillary is a part of that. But anyone who thinks Trump should be near nuclear codes is a fool. Look at the transcripts of press conferences; look at the tweets; look at the behavior.

      And anyone who supports Trump against Hillary is a fucking asshole. Go ahead – give everything to Trump and the GOP – kick health care, and Medicare, and social security, and our alliances to shit. But know that there are now but only two types of Americans in this country: neo-fascists, and democrats (small d). Which will you be?

      And as always, pars Republicana delenda est!

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