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The Supreme Court Intensity Gap

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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.