By Sean Casey
Politics has had a busy week. Pete Buttigieg, Amy Klobuchar and Tom Steyer dropped out in the span of 48 hours, Elizabeth Warren folded after losing her home state and Joe Biden shocked the world with a comeback win on Super Tuesday. In all the excitement, a pivotal moment for the future of reproductive health passed mostly under the radar (save some controversial comments from Democratic leader Chuck Schumer). On Wednesday, the Supreme Court heard June Medical Services v. Russo, a case that seemed poised to green-light onerous restrictions on abortion providers and begin dismantling a woman’s right to choose.
Though the five Republican-nominated judges constitute a strong majority, the court chose to strike down identical Texas legislation in 2016 and, with Chief Justice John Roberts as the swing vote, may well do so again.
The case’s outcome is far from certain. Though the five Republican-nominated judges constitute a strong majority, the court chose to strike down identical Texas legislation in 2016 and, with Chief Justice John Roberts as the swing vote, may well do so again. But the fact that the one old, wealthy, staunchly conservative male is all that stands between Roe v. Wade and an avalanche of red-state legal challenges speaks to a widening crack in our democracy, a ticking time bomb set to explode during the next administration.
The problem here boils down to math. Two consistently progressive voices on the Supreme Court, Ruth Bader Ginsburg and Stephen Breyer, are 86 and 81 years old. The next oldest jurist, Clarence Thomas, is only 71. With the recent additions of Gorsuch and Kavanaugh, the mean age of Republican-appointed justices drops to a virile 62, more than a decade younger than the average age of Democrat-appointed justices, 73. All things considered, it is exceedingly likely that one, if not two, vacancies will open up in the most influential body in American politics over the next four years — vacancies controlled by the sitting president.
It is hard to exaggerate the importance of these nominations. This administration has already filled 187 benches, a velocity not seen since Teddy Roosevelt, thanks in large part to Mitch McConnell’s stonewalling of Obama-era appointments. The White House and its Federalist Society buddies have already succeeded beyond their wildest dreams (just read their press release), and our judiciary, never a progressive institution, will lurch even farther to the right upon a second Trump term.
Imagine, if you will, a commanding conservative majority on the highest court in the land — 6 to 3, maybe 7 to 2. Imagine Justices Ginsburg and Breyer replaced by hardline Republicans in their 40s. Imagine losing all hope of compromise, reason, impartiality. Imagine dangerous, backward decisions like Citizens United as the rule, not the exception. Imagine law after progressive law dead at the hands of the judiciary, not just in the Supreme Court, but in the hundreds of smaller, less prominent arenas, where the GOP’s brightest legal minds will quietly force a regressive, damaging, deadly agenda on the general public for the foreseeable future. Imagine having no recourse, no way to dislodge these judges, no way to impose the direction of the people onto its government. That is the world we will live in should Trump be re-elected.
If Sanders wins the nomination, many moderates will grouse that they are not comfortable supporting a self-described socialist or his revolution. To them I say: You aren’t voting for Bernie and his radicalism — you’re voting against Trump and a judiciary bent to the will of the conservative movement. You’re not voting for Medicare for All or the Green New Deal or felon re-enfranchisement — you’re voting against the disembowelment of public health insurance, against the destruction of environmental protections, against the gutting of the Voting Rights Act. You’re not supporting Sanders. You’re opposing the institutional death of our country. There is, believe it or not, a difference.
The same holds if Biden is triumphant. A prevailing view among the activist left holds that a ballot cast for a relative moderate is a ballot cast for a flawed status quo, a state of affairs better torn down and rebuilt than reformed. To them I say: Judicial appointments are lifetime appointments. If Trump is re-elected and allowed to cement conservative dominance of the courts, it won’t matter how loud or young or motivated you are — his jurists are untouchable. They will reign over the legislative landscape for decades to come, sinking progressive agendas before they get off the ground. If Biden is the nominee, it won’t be enough to stay home. You have to hold your nose and vote, in huge numbers, because if you think the status quo is bad, just wait until we live in the world according to Clarence Thomas.
This election is not about Bernie Sanders or Joe Biden or Donald Trump. This election is about whether our republic can preserve a two-party system, whether Democrats and Democratic values will even exist 20 years from now. Trump is a temporary evil. But the choices he makes today will mold the nation for the rest of our lives, and nowhere are those choices more evident than in the courtroom. His judges will restrict our rights, demolish our democracy, stifle progressive policy until the planet is hot and liberals are left in the cold. So come November, don’t wring your hands over the eventual nominee or their political idiosyncrasies. A presidency is four years. Brett Kavanaugh is for life.
A previous version of the article stated that Chief Justice John Roberts was the swing vote in a 2016 Supreme Court case striking down Texas legislation. In fact, Kennedy was the swing vote and Roberts was in the minority. The Daily regrets this error.
Contact Sean Casey at spcasey ‘at’ stanford.edu