WE CAN’T COUNT ON A MAGIC MODERATE TO SAVE US
I’m working on the next chapter of the Twisted DNA of Capitalism series and I have a lot going on right now, but I wanted to take a couple of minutes to respond to a common argument I’m hearing from my colleagues on the left who steadfastly refuse to vote for Joe Biden.
It starts when I point out that I’m not a fan of the Vice President either, and I know he has a lot of Neo-liberal baggage, but I’m really voting for the future Supreme Court. As it stands, the Supreme Court will almost certainly begin the next term with a 6-3 conservative majority. And, let’s face it, the left wing of the Court is hardly left-wing.
Stephen Breyer, one of the so-called liberal Justices, is the oldest member of the Court at eighty-two years old. Clarence Thomas is a distant second at seventy-two years old. It is likely that the next President of the United States will be replacing at least one member of the court, possibly two. I’m no Supreme Court historian, but I’m thinking that there is the potential of seeing the most lopsidedly right-wing court in history. This at a time where the right-wing of the political spectrum is significantly so.
“Relax!” I’m assured by my colleagues and sundry progressive analysts. The right-wing tilt of the Supreme Court is not as big a deal as is being made out. After all, when conservatives are placed on the court and the balance of the court is at stake, a justice moderates their position and counterbalances things. We’ll be just fine.
I call this the Magic Moderate Thesis. For every right-wing zealot placed on the court, an existing conservative justice will become a moderate and set things right.
There is some validity to this argument. We have plenty of examples of presumably conservative judges taking the moderate or even liberal position once appointed to the court. After all, before Earl Warren was Chief Justice Warren of the ultra liberal Warren Court, he was conservative Gov. Earl Warren of California–the guy who oversaw Japanese Internment during World War II.
Look at Chief Justice Roberts. He was an ultra-conservative, but when Justice Kennedy retired, he jumped into the Magic Moderate spot and has served as the swing vote more than once.
Yeah. I’m sorry if the Magic Moderate phenomenon doesn’t quite sit well with me. It seems a leaky vessel to put much hope in. These mystical creatures may have saved us in the past–um…ish…you have to ignore some tragic decisions to accept this narrative1, however, we can’t count on them any more than we can count on the Christmas Spirit or for Trump to experience some transcendent moment by which he’ll repent his sins, resign his office, and turn himself over to the U.S. Marshals in sincere repentance.
First, it may be true that Supreme Court justices have been known to moderate their conservative positions, especially when the very legitimacy of the Court is at stake. More than one conservative justice has shifted to the left during their tenure on the court (see chart below). This does not, however, equate to those justices becoming “moderates”. At best they become more moderate than expected. Consequently, over the last fifty years the United States Supreme Court has become increasingly more conservative even in the face of the Magic Moderates taking on the swing vote.
How long can we keep allowing the Magic Moderates to moderate the court in such a right-wing direction before all is lost. And by “all is lost” I’m not being hyperbolic. Under the sway of these so-called Magic Moderates the federal courts and the Supreme Court have become increasingly more belligerent enemies of democracy. As the Guardian points out:
They have dismantled organized labor through “right-to-work” laws and union-busting judicial rulings based on a corporate-friendly reading of the first amendment. They have dismantled the promise of free and fair elections by needlessly gutting the Voting Rights Act from the bench, opening the way for rampant and highly effective state-based policies that suppress the votes of Black and brown Americans. They have greenlit extreme gerrymandering by ruling that federal courts are powerless to stop politicians from rigging district lines, and opened the floodgates to dark money controlling our politics.The Guardian, September 24, 2020
What else is at stake? It’s not just Roe. Certainly the ACA is in danger, perhaps in the very next year. So any hope of a public option or single-payer is off the table no matter how great a progressive shift in the legislature or in the states. Maybe they’ll go after the rest of the Voting Rights Act. The Civil Rights Act. Could Social Security be on the block? Brown? Is there any limit to the progressive advances that can be gutted by a 7-2 conservative majority on the Supreme Court?
Secondly, even if you accept the Magic Moderate Thesis, can we just assume that the right-wing machine hasn’t looked at the same historical trends and drawn the same conclusions? Is it likely that, say, the Federalist Society, seeing the very same data available to progressives, hasn’t come up with a plan to extinguish the Magic Moderates? Do you suppose such entrenched institutions that have engineered successful attacks against progressive achievement and liberal values for the last forty-five years have somehow missed this trend? Or perhaps they’ve seen conservative judges moderating their positions and are, in this one case, simply shrugging their shoulders, “whattayagonna do?”
It’s impossible to think that right-wing movement apparatchiks are not increasingly involved in the vetting process for new judges, including and especially Supreme Court nominees. Amy Coney Barrett, or someone with her impeccable right leaning bona fides would have been an impossible choice just a few short years ago. Now she will almost certainly don the black robes and take her seat among the most disproportionately powerful branch of our government.
I’m sorry. I’m no fan of Biden and the establishment Democratic machine he represents. However, the kind of damage that four more years of even a grossly incompetent protofascist can and will inaugurate simply cannot be overstated. A right-wing lock on the Supreme Court is only the tip of that particular iceberg. The appointment of hundreds more federal judges is the next level down. The federal judiciary being constructed unchecked by the McConnell Menagerie that is the U.S. Senate can open the floodgates to regressive rulings and lock the door against progressive reform for the next half century.
Voting for Biden is a painful choice. I’m sure we’ll have some regrets. Another four years of this mess, however, means the potential dismantlement of what’s left of American liberalism, let alone progressivism. Realistically, how many lives are we willing to destroy, how much suffering are we willing to accept, so we have the comfort of standing on our principles?
I know my criteria.
- Citizens United, Shelby v. Holder, Janus, just to name a few that immediately come to mind.