No! You SHOULD be Worried About the Supreme Court!

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.

Martin-Quinn Scores of the U.S. Supreme Court

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.


  1. Citizens United, Shelby v. Holder, Janus, just to name a few that immediately come to mind.

15 thoughts on “No! You SHOULD be Worried About the Supreme Court!

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  1. What I care mostly about is the U.S. Constitution, that each branch fulfills their part without stepping into the others. The Supreme Court is a separate branch, and getting truly constitutional justices in their is very important. Never mind what I or anyone else wants. Constitutional justices who won’t follow legislatures and special interests is key to them judging cases properly, as best as they can. I want her in the court not because I’ll get anything, but because it’s best for America. And if someone has ulterior motives that are anti-constitutional, I will never support them.

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    1. My experience is that what most people mean by “constitutional” is “the laws I like.” The laws I don’t like are clearly “unconstititonal’. The Constitution is a framework that requires interpretation. There’s nothing in the Constitution about abortion. The abortion ruling in Roe is based on an interpretation of “privacy” suggested in the Constitution. Not health care. Certainly not women’s rights, as women didn’t have rights as far as the Framers were concerned. This had to be interpreted. So the question becomes, how are they being interpreted. If you want someone who is going to interpret the Constitution “without bias” that’s great! Good luck. But that’s not Barrett. Barrett is going to interpret the Constitution according to YOUR bias…and that’s why you want her on the court. Merrick Garland would have been much closer to the idea you proclaim than Barrett.

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      1. No. The Constitution as it reads, together with the founding father’s own words, is very easy to understand in meaning, though there can be some debate. But it’s clear to honest people. When I read the U.S. Constitution, together with the founding fathers’ own words and the federalist papers, we had a much clearer understanding of intent and meaning, though the words speak for themselves. Some things, at first, I didn’t like, but I understood how it benefits the whole of our society. In other words, just because I personally might not benefit, not get my way, not cry “He took my pencil” and throw barbs and darts at those who require me to be responsible, I will still hold to the U.S. Constitution as a document framing the best country in history. Amy Barrett, by her own words and experiencing, seeing how she rules on past cases, is exemplary. She’s not working for me, for you, or anyone else. She’s working for the country and all of us within the framework of the Constitution. And the ones who don’t like her have an agenda not good for the country. Or they’re just not informed enough, having not done their homework.

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      2. Having religious dedication to a political document is pretty dangerous in my mind. I’ll leave it at that since I, by definition, have a bad agenda whereas those who agree with you are, by definition; good.

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      3. That’s an interesting technique. Old. Young kids use that. When a person can’t make a point work, instead of humbly seeking real answers, they use a complement as a barb or dart to throw. Kind of like making fun. Sarcasm. Used to do that in grammar school.

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      4. Then, please. Feel free to make your point. You’ve elaborated your thesis well, but offered no support. Here’s your time. Constitution is easy to understand for honest people like you who do not have an agenda. Great. Elaborate. What do the Founding Fathers…men who did not have a germ theory of disease…say in the Constitution and about Health Care, for instance? And why should what they say go unchallenged two hundred and thirty years later by people who know so much more and have so many more resources at their disposal than our Founders ever dreamed of. Oh, and while you are at it, explain why you also need the Federalist Papers if the Constitution were clear…to honest people? There were also “Anti-Federalist” papers. Why don’t those count? That’s the burden of your thesis. I’ve made my point in the post. Your thesis is that the Constitution is clear, requiring little debate, and does not need reinterpretation consistent with contemporary society. So please, instead of restating your thesis over and over again…sprinkled with ad hominem attacks against my honesty and my agenda (grammar school), support your thesis.

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      5. You know, there millions that use that same technique of drawing people in with sarcastic mimickry of acting like they want to talk (I’m speaking to the readers.), but no matter what anyone says, they’ll just throw darts and pretend nothing of value was said. Then, the thesis thing, like the professor who’s just setting up students, even if the student is legit, the professor will use rhetoric, propaganda, and intellectual speak void of real understanding to attempt embarrassing the student into becoming one of his/her dupes. Perhaps, that’s where this comes from. Kind of like background noise. **I say this to show nothing new is hear. I’ll just add one thing, before the ranting continues, knowing the decision has been made, and I won’t return because clarity demonstrates no attempt at understanding and civil discourse is here. **The founding fathers dealt with all kinds of diseases back then, and any real student of history knows that. The government was never designed to take care of us from cradle to grave. That’s our responsibility. It’s a document spelling out exact responsibilities for each of the branches. Whatever isn’t spelled out is left to the people.

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      6. I’m not trying to embarrass you. You wanted a conversation for the sake of “humbly seeking real answers.” So let’s have it. So a couple things. It is true that our Founders dealt with all kinds of diseases. They dealt with them in much the same way they had for hundreds of years…and if their own bodies didn’t take care of whatever ailed them, they died. That’s no longer the case. We know so much more and can do so much more. In order for everyone to get equal protection as required by the Constitution, and make the best use of our technology for the general welfare as suggested by the Constitution, structures need to be in place that help us get access to the resources created by our society. I think that’s a Constitutional argument. But, you are right. A Constitutional argument can be made that health care is not explicitly stated in the Constitution. So then health care is “left to The People.” Okay. Let’s say that The People, through their representatives, say we want a single-payer health care system? How is that not Constitutional? “The government was never designed to take care of us from cradle to grave.” I’m sorry. That’s rhetoric. What does that mean? What’s the government for if not to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, from cradle to grave? Finally, whether the document spells out exact responsibilities is debatable (I think), but one thing that is not in the Constitution is Judicial review…which is what everyone is concerned about when we debate who sits on the Supreme Court.

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      1. This is a blog, which is read by a few people, but all have access. But if you feel so important, that those of real viewpoints are unwelcomed, so like a king sitting in the den with a dull bulb above, you say “off with your he#d, then so be it. As some have read this, they’ll know you don’t really want real information. That’s up to you. I provided insight. It’s up to you whether you wish to have real conversations. Those looking to hear varying viewpoints will know though. All the best.

        Liked by 1 person

  2. You’re a trip, Dude. Have I censored or altered any of your comments? Of course not. I’ve never censored anyone who has responded to this forum. That being said, I won’t allow this site to be used to promote hate speech and ignorance. So no. This is not an open forum. It’s a forum that I control and am responsible for.
    That being said, I’ve given you the opportunity to share “real information”, but you interpret this as some kind of professorial trick to trap you in some rhetorical net. Okay. So then you claim that people who want real information can go to your blog…a nice safe space for you. Hey. I support safe spaces! so you do you. Have a nice day.

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