The Supreme Court Intensity Gap

Democrats have been buoyed this election season with what's been dubbed the "intensity gap." Democrats are happy with their candidate field, united in their dislike of Bush Administration policies, and secure in the general direction they want to take the country (as illustrated in the difficulty Obama and Clinton have in finding any issue upon which they sharply disagree). By just about every measure - number of voters in primary contests, campaign war chests, size of candidate rallies - the intensity gap favors Democrats.

But on one critical front - the future and direction of Supreme Court - the intensity gap clearly favors the Republicans. For Republicans, the Court is a base-rallying issue - each one of the Republican candidates stated early and often some variation of the claim that they would nominate judges in the mold of Roberts, Alito, Thomas and Scalia. The Court is also primary-season wedge issue, as illustrated by recent attempts by the far right to derail John McCain by hinting that he once wavered slightly in his support of Samuel Alito.

When's the last time you heard one of the Democratic candidates talk about who they would nominate to the Supreme Court? Have they said anything at all interesting about the topic? Not that I've heard. Republicans just seem to care more about the future of the Supreme Court than Democrats.

This is surprising for a couple of reasons. First, just last spring, a deeply divided Supreme Court handed conservatives key victories on hot-button social issues such as reproductive choice and affirmative action. As importantly, the Court hit the pocketbooks of ordinary Americans in a number of 5-4 rulings such as one that struck down predatory lending rules in all 50 states (Watters v. Wachovia) and another that sharply limited the ability of workers to prevent discrimination in pay based on race or gender (Ledbetter v. Goodyear). The one progressive victory last term, Massachusetts v. EPA, which has transformed the global warming debate in this country, was also 5-4.

Second, progressives have more to lose in this election than conservatives. The Court is already conservative: only the occasional moderating influence of Justice Kennedy is preventing a dramatic rightward shift in the direction of the Court. And the Court's four more progressive justices - Stevens, Ginsburg, Souter, and Breyer - are, on average, 15 years older than their conservative counterparts. Conservatives would probably be able to weather 4 or 8 years of a Democrat in the White House with their effort to control the Supreme Court only marginally damaged. For progressives, another Republican in the White House could deliver the Court to conservatives for a generation.

So why don't progressives seem to care? The answer, I think, is that conservatives have a clear vision of where they want the Court to go and progressives don't. More precisely, conservatives have a forward looking vision for the Court - they want the Court to make dramatic jurisprudential shifts that favor Republican "values" voters and corporate interests. Progressives remain fixated in the Warren/Brennan past, united mainly around the goal of preserving as much of the status quo as possible.

It's hard to energize Americans around the status quo, which is why the Democratic candidates talk about the forward-looking parts of their agenda on energy security, foreign policy, and health care.

This silence has its consequences, as illustrated in the safe Supreme Court picks by President Bill Clinton. Breyer and Ginsburg are fine Supreme Court justices and capable defenders of the status quo, but neither are what Cass Sunstein has called "visionaries" - justices that have "a large-scale understanding of where the nation should be heading" and are "entirely willing to press a controversial theory about, say, liberty or equality or the president's power as commander-in-chief, even if that theory offends many Americans." Progressives have had such visionaries in the recent past, notably in justices such as Hugo Black and Thurgood Marshall, but right now they have no counterweight to conservatives such as Scalia and Thomas.

Progressives have been cowed by the label "liberal judicial activism" and now seem to think that it is too much to ask for a president to nominate a Marshall or a Black. But as I've argued elsewhere, here and here recent scholarship demonstrates that constitutional text and history support and, in some areas, compel a progressive shift in constitutional law. It's difficult to argue that fidelity to the Constitution is activism, even if it departs from the status quo.

Progressives will get the Supreme Court nominees they ask for. Right now, they're saying they'll take any justice a Democratic president chooses to give them.

Comments

[oldpotsmuggler]

With 19 years on the Supreme Court under his belt, Kennedy is still only 71. Given those numbers (as well “5 to 4″), I wish I had a clue about what he’s doing. Because of his refusal to join much of the Roberts opinion in the school desegregation case, Kennedy’s actually becomes most of the majority opinion. And I haven’t read the 185 pages so I won’t claim to know exactly how fractured this thing really is. Oddly, he was willing to nudge the law slightly in the wrong direction, preventing it from being jerked completely that way. As he has done so many times.

Does Justice Kennedy have a vision? Does he think that the law is almost perfect, except for a few small squeaks that he is best suited to fix? Does he just draw straws?

What kind of a Supreme Court do we really have when one guy effectively becomes the law of the land? What kind of a country do we have when folks “white flight” to the suburbs, and the minorities that replace them are forced to keep using schools that are clearly inferior?

The answer is that we have a country where the most dramatically crazy people can’t be given the death sentence because one minute before throwing the switch they don’t have the capacity to understand the reason why they’re dieing. Of course, the others have exactly the same level of understanding the connection between their crime and their punishment a few moments after the switch is pulled but killing them makes perfect sense.

All because Justice Kennedy said so.

[radiclib]

This is an excellent post about a very important issue. You are right, the extremist Republicans use the S.C. as a rallying cry and they already have several dangerous justices in their favor now. It's not only at the top. The whole federal judiciary has been contaminated by G. W. Butch. It will take at least eight years to turn it around, maybe more. Vote progressive, liberal and Democratic and demand a shift.
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[oldpotsmuggler]

With 19 years on the Supreme Court under his belt, Kennedy is still only 71. Given those numbers (as well “5 to 4″), I wish I had a clue about what he’s doing. Because of his refusal to join much of the Roberts opinion in the school desegregation case, Kennedy’s actually becomes most of the majority opinion. And I haven’t read the 185 pages so I won’t claim to know exactly how fractured this thing really is. Oddly, he was willing to nudge the law slightly in the wrong direction, preventing it from being jerked completely that way. As he has done so many times.

Does Justice Kennedy have a vision? Does he think that the law is almost perfect, except for a few small squeaks that he is best suited to fix? Does he just draw straws?

What kind of a Supreme Court do we really have when one guy effectively becomes the law of the land? What kind of a country do we have when folks “white flight” to the suburbs, and the minorities that replace them are forced to keep using schools that are clearly inferior?

The answer is that we have a country where the most dramatically crazy people can’t be given the death sentence because one minute before throwing the switch they don’t have the capacity to understand the reason why they’re dieing. Of course, the others have exactly the same level of understanding the connection between their crime and their punishment a few moments after the switch is pulled but killing them makes perfect sense.

All because Justice Kennedy said so.

[bradford]

Probably the reason Hillary and Obama are keeping mum about the judiciary is because if they did talk about all the leftist judges they want to put on the bench to rewrite the constitution and basically turn the supreme court into a super legislature they would be writing their political death warrant.

[JD8]

I disagree. Democrats are basically pro-choice. We want a court that will uphold choice. Democratic candidates are seeking crossover voters and don't want to offend potential Democratic voters who are pro-life by emphasizing the Supreme Court issue.

Obama is a constitutional law scholar who was EIC of the HLR. He is the best candidate in terms of knowing who to put on the court.

He also happens to be the best candidate in general. For more of my view on Hillary Clinton versus Obama and to vote yours, see http://www.dailykos.com/storyonly/2008/2/2/0181/84501/394/448113

[LizM]

“When's the last time you heard one of the Democratic candidates talk about who they would nominate to the Supreme Court? Have they said anything at all interesting about the topic? Not that I've heard. Republicans just seem to care more about the future of the Supreme Court than Democrats.”

Well...if that isn’t precious, then I am sure I don’t know what is.

But, the answer to your question is Joe Biden. However, the electorate, and the national media/bloggers they follow, have already demonstrated that they don’t care about the direction of the Supreme Court by ignoring or otherwise dismissing Senator Biden’s candidacy. Why is that?

And, when so-called progressives aren't ignoring Biden, they're misrepresenting his actions and principles and, in the process, betraying their own ignorance on a subject of such a critical nature.

[Sciguy]

Good point - and I hate to admit it, but I suppose I **would** take any Supreme Court justice that the Dems choose to give me. I'll just be hoping that a Democratic Prez will select progressive justices, and that a Democratic Congress will support progressive choices (and block reactionary choices like "Scalito"). Of course, it would also be nice to have justices with some judicial experience, unlike Roberts, but maybe I'm hoping for too much.

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I'd love to see some of that alleged liberal judicial activism, since I've had enough of conservative judicial activism to last me a lifetime. Looking forward by enhancing the rights of women, people of colour, and gays may indeed be activism. However, turning the clock back on those same rights is also activism. Activism is "a doctrine or practice that emphasizes direct vigorous action especially in support of or opposition to one side of a controversial issue" (Merriam-Webster Online) - and that definition certainly fits the gutting of human rights as well as the validation of human rights.

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Why do I never hear progressives griping about the current conservative activism? Maybe if we pointed out that **any** decisions about laws, acts, or the Constitution are activist, and lately they've been REACTIONARY JUDICIAL ACTIVISM (eek!), we could pull the plug out of that toxic bath water. Unless, of course, the justices avoid activism by refusing to act.