The death of Antonin Scalia highlights the Democrats' day of reckoning.
Pretty soon, Democratic primary voters will settle on Bernie Sanders or Hillary Clinton. The fallout could be toxic. Many partisans of both candidates harbor dire images of the other. Hillary is a slippery sellout. Bernie is an impractical loser. Hillary is several people. Bernie is just one -- a cranky loner. And so on.
I'm not here to argue with anyone. Feelings run high -- I get that. I got it in 1968, when many supporters of Eugene McCarthy and Robert Kennedy abandoned Hubert Humphrey, who they saw as a weaselly supporter of the war in Vietnam. And then we all got Richard Nixon -- and six wrenching years of perspective punctuated by carpet bombing and needless deaths abruptly ending in Watergate.
During which time, by the way, Nixon also gave us William Rehnquist and transformed the Supreme Court.
To be sure, there are real and important differences between Sanders and Clinton. But no matter which Democrat wins the nomination, if she or he loses in November then much that is dear to their supporters will take a beating -- environmental protection, pay equity, gun control, voting rights, women's rights, combating money in politics and, yes, whatever chance exists to curb the excesses of Wall Street. And there is one forum where virtually all of these issues are certain to play out, for good or ill: the Supreme Court.
With Scalia's passing the Court is now in equipoise -- four justices appointed by Republicans, four by Democrats. Hanging in the balance is the legal future of core issues like affirmative action, union rights, reproductive freedom, and environmental protection. Even if Barack Obama sends a nominee to the Senate, Mitch McConnell has pledged to block a vote. Thus the course of the court -- and, in many ways, the fate of progressive values -- depends on this election.
Here the past is truly prologue to the crucible of 2016. The 5-4 conservative majority that preceded Scalia's death included two justices appointed by George W. Bush -- John Roberts and Samuel Alito. The result was a relentless right-wing judicial activism through which the court undertook to transform our society. So let's consider two controversial decisions by the Roberts Court that go to the heart of what kind of country we are, what kind of decisions we could expect if a Republican president chooses Scalia's successor, and -- critically -- how the Republicans will ensure that this new justice is a judicial clone of Antonin Scalia.
First, the Lily Ledbetter case. Most of us know at least something about it, though perhaps less about what is most telling: the convoluted reasoning through which Republican justices got where they wanted to go.
The case involved an allegation of sex discrimination. Unknown to Ledbetter, her employer, Goodyear, determined to pay her less than its male employees for performing the same job. As a result, Ledbetter received paychecks that were significantly smaller than those of her male counterparts.
When at length she found this out, Ledbetter sued Goodyear under federal anti-discrimination statutes. Despite the fact that Goodyear had concealed its original discriminatory decision, the Supreme Court ruled, in essence, that Ledbetter had discovered that decision too late to file suit within the statute of limitations. On these technical grounds, she was barred from the Court.
To reach this ruling, a 5-4 majority of justices -- all Republicans, including Scalia -- employed some truly Orwellian logic. The statute of limitations began running, they reasoned, at the time of Goodyear's secret decision. The unequal paychecks -- though received because of this decision -- did not themselves reflect an intention to discriminate on the basis of sex, because Goodyear had already decided to pay Ledbetter less. In the majority's view, the smaller paychecks given Ledbetter as a result just sort of happened on their own.
Think about that. Stripped of legal niceties, the Republican majority rewarded an employer for successfully concealing from its female employee its deliberate decision to discriminate against her, allowing it to underpay her with impunity. Justice Ruth Bader Ginsburg's piercing dissent pointed out that Goodyear had knowingly carried its discrimination forward every time it issued Ledbetter a smaller check. Obviously true -- and to the Republican majority, irrelevant. Quite deliberately, they shaped the law to protect a corporate perpetrator of discrimination against its victim -- one of many decisions slanted toward the interests of corporations.
There is an important coda. Outraged by the Ledbetter case, Democratic majorities in the House and Senate passed legislation to change the law, which Barack Obama signed on taking office -- albeit too late for Lilly Ledbetter. Without Obama, the Ledbetter decision would stand as a bar to other women who suffered pay discrimination.
Which brings us to another 5-4 decision by the same Republican justices: Citizens United.
We we all know the essence of this decision -- that corporations, and subsequently super PACs, have the First Amendment right to influence elections by flooding our campaigns with millions of dollars in special interest money, often through repetitive -- not to mention mendacious -- political advertising. The court's ruling ignores the obvious, that these millions do not just buy access to the politicians who benefit, but outcomes, changing the lives of citizens who lack the megaphone of money. And, in the process, the majority exploded the pretense of "judicial modesty" beneath which they concealed their right-wing political agenda.
No matter what pieties they invoked to cloak this as a victory for free speech, there is simply no doubt that this decision -- as was surely obvious to the majority -- helped the Republican Party and the wealthy donors who fund it. Clinton, and especially Sanders, have made quite a point of that. But what is less known about Citizens United is the degree to which the five Republicans contorted the usual Supreme Court procedures to transform the political landscape.
For those fortunate enough to have skipped law school, a brief explanation. It is a basic tenet of Supreme Court jurisprudence that the court will only decide the issues presented by the case before it -- and nothing more. Indeed, this principle is central to the judicial restraint the Roberts court purported to embrace. Unless, it turned out, the majority could advance the political interests of the Republican Party and the forces it represents.
The Citizens United case originally presented the court with a narrow and technical legal question under the campaign finance laws. It posed no threat to those laws, raised no constitutional issues, and gave no hint whatsoever of recasting billions of dollars in soft money as speech. Indeed, the distinguished conservative lawyer who argued the case -- Ted Olson -- stuck strictly to the narrow issue at hand.
But five Republican justices had other ideas. After Anthony Kennedy prepared a draft opinion gratuitously and dramatically expanding the scope of the court's prospective ruling, Chief Justice Roberts scheduled the case for re-argument. Following Kennedy's lead, Roberts widened the issues before the court way beyond what the litigants themselves had argued. From there on, the Court's highly unusual departure from normal practice foreordained the obvious: five Republican justices -- Kennedy, Roberts, Scalia, Thomas and Alito -- had hijacked the case in order to shape the financing of American political campaigns to their liking.
In dissent, an appalled Justice Stevens said precisely that: "Five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law." As to the ruling itself, Stevens called it "a rejection of the common sense of the American people, who have... fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt."
Notably, Justice Stevens is himself a Republican. But he is a different kind of Republican -- a distinguished lawyer who qualified for the court by being just that. The new litmus test for Republican presidents is not quality, but ideology -- whether a nominee is certain to use his or her position to advance a right-wing legal and political agenda. Thus the screening process for Republican judges has been profoundly changed -- a seismic shift in which Justice Scalia himself was instrumental.
To be sure, federal judges were always appointed by the party in power, and often the criteria -- particularly for the lesser federal courts -- included political involvement as well as, or even above, achievement in the profession. But Republican presidents now draw their judicial appointments from a different pool of candidates -- lawyers recruited, indoctrinated and screened in order to turn judicial decision-making into right-wing politics by other means. The goal is to make sure that no Republicans like John Paul Stevens ever grace the Court again.
The principal agent of this slow-motion legal coup is the Federalist Society, an organization founded in the 1980s, and for whom Justice Scalia was perhaps the most visible proponent. It has but one mission: to seed the government and federal courts with lawyers whose fidelity to hard- right conservative ideology is predictable and fixed. And it's succeeding.
The society currently has chapters in over 200 law schools, and claims as members 10,000 law students and 60,000 lawyers. Among its many loyalists on the bench were three justices in the five person majority for Ledbetter and Citizens United -- Scalia, Thomas and Alito, all members of the Federalist Society -- and a fourth, Chief Justice Roberts, who was a member of the Society's Washington DC steering committee. Thus these two cases -- and many other Supreme Court decisions which reflect modern conservative ideology -- are progeny of the Federalist Society.
As a result, the Roberts court has graven into law a stunning agenda of right-wing activism that impacts every aspect of our society. It has narrowed voting rights and barred affirmative action. It has empowered corporations and weakened unions and workers rights. It has gutted campaign finance laws, eroded environmental regulation, and chipped away at Obamacare. The notable decisions that contravene the agenda of the Federalist Society -- like the gay marriage opinion -- usually have occurred only because the four Federalist-affiliated justices could not bring along the Republican non-affiliate, Anthony Kennedy.
This dramatic shift in judicial appointees is further spelled out by an exhaustive empirical study of federal appellate judges published in 2009 by two political scientists, Nancy Scherer of Wellesley and Banks Miller of Ohio State. Their aim was to determine whether the Federalist Society does, indeed, have the far-reaching influence on judicial decision-making that is its reason for being.
The results were conclusive and deeply disturbing for anyone who cares about judicial independence. The short of the study's detailed findings is that judges who are members of the Federalist Society are twice as likely to cast votes which reflect conservative ideology than are Republican nonmembers, let alone judges appointed by Democrats. The study further notes that Republican presidents now rely on the Society and its members to identify and screen judicial nominees.
Thus future Republican appointees -- ever more reliably and, indeed, inevitably -- will decide cases not on the basis of unbiased and dispassionate legal reasoning, but to advance the political and ideological preferences they were selected to uphold. To assert that this is merely a matter of "judicial philosophy" is to obfuscate the systematic and deliberate effort to transform the federal courts, packing them with political activists whose rulings are foreordained. Spurred by the Federalist Society, the Republican Party has not simply changed the law, but the very role and nature of the judiciary itself.
And so with Antonin Scalia's death, the Supreme Court is at a final crossroads. As are Democrats who may feel tempted to walk away from their party's nominee, whether it be Bernie Sanders or Hillary Clinton.
A Republican president empowered to choose Scalia's successor will leave nothing to chance -- no more than when the next vacancy arises, and the next. Without exception, every new Republican justice will be an avatar of the extreme conservatism advanced by the Federalist Society. Unless a Democratic president takes office in 2017, the Republicans will mold the Supreme Court for yet another generation, completing the transformation of our highest court into an agent of right-wing politics by other means. And, with that, the Court will change the essence of our society, and how we define justice, in ways too deep to ever be undone.
Which brings us back, yet again, to the past as prologue: the election which gave us the Roberts court, Ledbetter, Citizens United and a host of other decisions which advanced right-wing ideology at whatever cost. An election decided by another 5-4 Republican majority in a case called Bush v. Gore.
In 2016, disappointed Democrats should not do this to themselves. Let alone to the country.