By Bill Blum
Like Hamlet on the battlements, the progressive left is haunted by a question: to vote for Barack Obama with all his faults or, by boycotting the elections or casting ballots for a third party, risk the inauguration of Mitt Romney? To some on the left, disaffected by Obama’s statist posture on national security, his kowtowing to Wall Street and timidity on climate change, there is no appreciable difference between the two major candidates. So why not stay true to genuine progressive values and turn away from Obama, even in the swing states?
Of all the reasons for rejecting such thinking and the risks posed by a Romney victory, perhaps the clearest is that Romney’s election will enable the Republican Party to reshape the Supreme Court—and the entire federal judiciary along with it—for a generation. And, as the courts shift ever more decisively to the right, the fight for social justice and basic human decency also will be set back a generation.
Those doubting the risks involved in a wholesale GOP makeover of the courts should, at a minimum, reflect on three basic principles.
1. The courts are central to our politics.
There is a strain in American political thought, dating back to Alexander Hamilton’s characterization of the courts in Federalist Paper No. 78 as the “least dangerous branch” of government, to overlook or at least underestimate the importance of the courts to the nation’s political life. But whatever vision Hamilton may have had for a deliberative judiciary above the fray, history has placed the courts—and particularly the Supreme Court—in the thick of nearly every major political and social question, from the constitutionality of slavery to a woman’s right to choose, from the right of workers to form unions and engage in collective bargaining to the right of all citizens to vote.
Nor is the judiciary’s role in deciding such questions an artifact of the past or a function that has diminished over time. Indeed, two of the Supreme Court’s comparatively recent decisions—Bush v. Gore, which determined the outcome of the 2000 election, and Citizens United v. Federal Election Commission, which last term upended the law of campaign finance and ushered in a new era of corporate personhood—stand among the most political (and worst) in its history.
This term, as the high court confronts cases dealing with the constitutionality of same-sex marriage and affirmative action and reviews aspects of the Voting Rights Act, the narrow 5-4 conservative-to-liberal balance among the justices may crimp the right-wing breadth of the final decisions that are issued. With a Romney victory and the judicial appointment power that comes with the presidency, the last constraints will be removed in future cases when the court surely will be asked to re-examine such weighty issues as the constitutionality of Obamacare and the reproductive freedoms of women as recognized in Roe v. Wade.
2. There is an active interplay between progressive social movements and the courts.
Another strain in American political thought, prevalent on the left, is the view that the courts respond to strong popular movements, irrespective of what party or president holds office. Under this assessment, it isn’t the inherent wisdom of the courts or the president that advances rights and freedoms, but organized pressure from below, whether workers banding together to secure higher wages, minorities clamoring for civil rights or women demanding equal protection.
There is much, of course, to commend this perspective. Without organized outcries in union halls, factories, universities, neighborhoods and the streets, the legal victories achieved by progressive movements would be unthinkable.
But legal victories—and defeats, when they occur—also have a direct impact on the movements themselves. To take the labor movement, as one example, the Supreme Court’s 1937 decisions upholding the constitutionality of the Social Security Act weren’t simply a response to the pressures of organized labor; they also spurred the future growth of organized labor. By contrast, the recent decisions of the present Supreme Court under Chief Justice John Roberts curtailing the ability of public employee unions to spend union dues on political issues have dramatically weakened the movement, showing once again that judges and the power to appoint them exert a direct influence on causes dear to the progressive left.
3. Even if the left neglects the courts, the right won’t.
Progressives still unconvinced that abandoning Obama is a bad idea need ask one final question: Will the right ever take its eyes off the prize of remaking the judiciary?
The answer is clear. Long before Romney named former federal appeals court judge and failed Supreme Court nominee Robert Bork to head his judicial advisory panel in April, the American right had set its sights on taking over the nation’s courts, both through the promotion of regressive legal doctrine by way of policy organizations such as the Federalist Society and by means of a politicized judicial screening process that has resulted in the appointment of reliable staunch conservatives such as Roberts and Justice Samuel Alito and the avoidance of stealth liberals, such as former Justice David Souter.
Under a President Romney, we can expect more justices like Alito and Roberts and none like Obama appointees Elena Kagan and Sonia Sotomayor. And it is not just the top tribunal that is at risk. Like the Supreme Court, the current federal appellate circuits—which adjudicate a far higher number of cases each year than does the high court—are closely balanced between Democratic and Republican appointees. That balance, and the raw power that comes with it, will swing decisively, depending on the outcome of the election. The right understands this. Sadly, important sectors of the left do not.