Monday, May 30, 2016

Does The Supreme Court Really Matter That Much?

One thought game I like to play as often as possible is to take something I believe so strongly, that I don't even consider that I might be wrong, and question its validity.

[Synopsis:  Is the Supreme Court the Holy Grail of US presidential elections, important enough for party members to ignore their candidates' flaws so at least they can appoint the next Supreme Court justice or two?  Or is its importance over rated?  This post gives some evidence that both parties treat the court that way.  The crux to me seems to be the extent to which the court's decisions can thwart voters - like in Bush v Gore or in gutting the Voting Rights Act.

But the Supreme Court is the issue, only because we are unable to solve our differences at a lower level.  The worst issues get kicked up to the Supreme Court.  A  bigger long term issue is the need for grass roots movements to get Americans of different ideologies to talk to each other and to break the media's narrative of the unbridgeable divide.  I believe that most people's basic values are much more aligned than the media portray.  With more Americans speaking with a more united voice, Congress will be less polarized, and the court's decisions will be more focused on legal, rather than political, disputes.   The details are below.]

In discussions about the election - whether it's whether Republicans should support Trump or Sanders supporters should vote for Clinton - all roads seem to lead to the balance of the Supreme Court.  As much as you may dislike your party's candidate, you don't want the other party appointing the next Supreme Court justices.

Some examples I found online:

From left-leaning The Nation:
"The Supreme Court Is the Most Important Issue in the 2016 Election If Republicans obstruct Obama, the next Democratic president can shape the most progressive court since the 1960s."
The opening sentence of that article lists the reasons:
"Healthcare, gay marriage, voting rights, affirmative action, reproductive rights, labor rights, immigration, climate change."
And from another voice on the left a piece at TPM:
"The Implications for the Nation of a changing Supreme Court. There is so much at stake concerning the Supreme Court for the next few years. As I wrote in Plutocrats United, the easiest way to amend the Constitution to deal with campaign finance disasters like the Supreme Court’s opinion in Citizens United is not to formally amend the Constitution, but instead to change the composition of the Supreme Court. Regardless of what happens with Justice Scalia’s replacement, there will be likely at least three other Justices to be appointed over the next 4-8 years of the next President’s term. The stakes on all the issues people care about—from abortion to guns, from campaign finance and voting rights to affirmative action and the environment, depend upon 9 unelected Justices who serve for life."

From the conservative Weekly Standard, there's a recent article about Zubik v Burwell (on whether non-profits should have to notify the government they do not want to offer contraceptives in their health insurance plans) with the title:
"The Stakes Are High: A timely reminder of the importance of the Supreme Court." 
Richard Wolf, writing in USA Today, back in October 2015 wrote that the Supreme Court is a bigger deal to Republicans than Democrats.

Note:  I do have to acknowledge that when looking for these quotes, I did find a lot of articles on whether Republicans should vote for Trump or Sanders supporters should vote for Clinton that did NOT mention the Supreme Court.

So, is the Supreme Court enough reason to vote for someone you're seriously unhappy with?  

The recent conservative leaning Supreme Court (before Scalia's death) declared money a form of speech in Citizens United, and allowed same sex marriage, upheld the Affordable Care Act, and struck down a number of voting rights provisions.

As big a deal as many liberals make of Citizens United, I would point out that social media have offered a counterweight to money.  And we have seen all the big money going to fight Trump's nomination, it would appear today, unsuccessfully.  And Sanders has managed to refuse PAC money yet to stay in the race and win many primaries and caucuses through the power of the internet and a strong ground game.

Even with a five-four conservative majority, Obama Care and same sex marriage are now the law of the land.

Though the gutting of sections of the Voting Rights Act does pose a serious threat of continued gerrymandering by the many Republican controlled states and allows for obstacles to be erected that prevent - generally - the poor and non-white voters from getting to the polls.  That does fundamentally weaken the chance for the majority's vote to be counted.  For democracy to work. (OK, I understand that a lot of people would laugh at the idea that democracy works at all.  There's only so much I can squeeze into this blog post.  But I've touched on this issue under the label ten steps to dismantling democracy, which I created after a post of that name about Naomi Wolf's book The End of America.)

But there are Republicans telling other Republicans to vote for Clinton.  He's not even mentioning the Supreme Court.

But Democrats tend to be telling Sanders voters to vote for Clinton.  The articles I saw saying Sanders voters should go with Trump tended to be from conservative outlets.  For example, The Federalist.

Here's Ben Shapiro's take at The Daily Wire on why voting for Trump because of the Supreme Court isn't a good reason.  (It's the fourth of five reasons to vote for Trump that Shapiro says are false.) Also  he dismisses the importance of the Supreme Court at the end.  I'd note that I don't understand how he thinks a Trump victory will lead to a Democratic US Senate.):
"4. But The Supreme Court! Trump, the logic goes, will select a more conservative Supreme Court Justice than Hillary Clinton. There is no evidence to support this contention. Again, Republicans are highly likely to lose the Senate to Democrats. Does anyone truly think Trump has the stomach to fight for a constitutional conservative on the Court when he thinks that Supreme Court justices prosecute crimes and sign bills? Ronald Reagan missed two out of three Supreme Court picks. George H.W. Bush went one for two. George W. went one for two. Ford went zero for one, and Nixon went one for four. Does anyone think that Donald Trump will do better than any of these people? Trump has never backed a constitutional balance of powers; he doesn’t know what that phrase means. If you’re hanging your hopes for a conservative Court on Donald Trump, you’re being conned.
Beyond that, the Supreme Court is not the best hope for the Constitution. That hope lies at the state level, and in resistance to unconstitutional legislation and decisions." [from The Daily Wire.]

The Republicans have, for decades now, focused on grooming conservative attorneys to go into the federal court system and on gaining control of state governorships and legislatures. The Federalist Society has played a big role here.  This movement is a mix, I'm sure, of those who truly believe in various conservative ideologies, those who are opportunists looking for jobs and power on a relatively low level, and those who are looking for power and wealth on a relatively high level.  They've made anti-regulatory arguments into personal freedom issues and used those to challenge science that was harmful to their personal interests - science that said smoking caused cancer, science that says global warming is caused by humans.  They've carefully played the emotions of the religious and the less educated on issues like abortion and gay rights.  And they've fought the whole idea of government, except to serve their own interests.  At least that's what it looks like from where I sit.

The Democrats seem to have been focused on specific issues, but not on long term structural strategies like the Republicans.

The media have also played a negative role.  As the newspaper business has become corporatized, and profit becomes the most important motive, news becomes entertainment.  Conflicts generate more readers than calm, so the media now focus more on conflict, and our view of the world is distorted by the exception (the conflict), not the norm (the people who live peaceful lives.)  (That's not to say that profit and conflict  haven't always played a role in the news.)  This election is basically a reality television show - a political "Survivor" - that focuses on personal characteristics, gossip, and strategies to knock competitors off the show, not on the important issues.  No wonder Trump is the Republican nominee.  He's a veteran of reality tv.

The way I see it, taking back our country is something that people have to do.  It's not something Trump will do for us.  Taking back our country is not about going back to when white males did ok because women and non-whites were blocked from the best careers, the best universities, from voting, from controlling their own lives.  It's about going back to when there was a thriving working class, and college grads didn't have huge debts along with their diplomas,  when people with different world views at least knew each other and talked to each other civilly.

The bright side of the internet can help us take our country back.  But it's something that has to be done, ultimately, face to face, community by community.  Immigrants have to share family stories with working class white families.  Black and Latino high school students have to do the same with those who would cut public school funds and together they should work out  better ways to educate our young.  Wealthy owners of corporations need to eat meals at the homes of their lowest paid employees and learn to see the world through their eyes.  And the advocates of regulation need to spend some time in businesses that are tied up by rules.  We have lots of problems, but they are all resolvable if we see each other as well intended human beings and not as 'the enemy.'

Basically we need to talk to each other about the basic issues.  Our childhoods and our relationships with our parents and siblings and partners and kids.  How we earn. save, and spend money.  What our fears are, what our joys are.  What our dreams are.  Why we smoke, drink, take drugs.  Why we don't.  When we do this, we'll find out how much we really have in common.  We'll be able to learn better strategies for getting past our obstacles from those who have already done that.   Good art and literature can help here.  When we start talking to each other as people, as members of our community, rather than as the enemy, everything else will work itself out.

So yes, the Supreme Court is important.  But it's only important because we're so polarized that we can't make important decisions.  Those intractable issues get bumped up to the court.  We need to resolve things at a much lower level and let the Supreme Court worry about legal, not political, issues.

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