One ‘hold-your-nose-and-vote-for-the-lesser-evil’ argument currently making the rounds for the Hillary Clinton candidacy–ostensibly intended to address the ‘schism’ in the Democratic Party, among the ‘Left’ and ‘progressives’–goes something like this. Vote for Hillary Clinton, even if you disagree with many of her policies, do not consider her entirely trustworthy, and would much rather vote for Bernie Sanders–because she will nominate the right person, the right Justice, to the US Supreme Court. (The Senate will not confirm a nominee put up by President Obama, so this will be one of the first tasks awaiting the new President next year.) No matter what you think, you cannot allow a President Trump to nominate a right-wing ideologue to the Supreme Court, who will then roll back years of hard-won legal victories in many domains: perhaps abortion restrictions, perhaps voting rights, perhaps the power of regulatory administrative agencies to keep our work spaces safe and our drinking water clean.
It is worth noting how much this argument presumes and concedes.
First, and most importantly, the American political system is broken. There is no separation of powers; the judiciary and the executive branch are the new legislatures. The Supreme Court is now a full-blown political institution. Political change will not come about because people’s representatives will legislate their desires and demands into existence; rather, an unelected group of Yale and Harvard educated lawyers will respond directly to petitioners who seek to address some perceived injustice. Persuade the justices; do not bother with the ballot box. Unless you are voting for President.
Second, it places too much faith in the ability of the Supreme Court to drive substantive social and political change. The poster child for this sort of claim is Brown v. Board of Education, which left segregation intact; and as a vigorous debate among professional court watchers–a motley crew of legal scholars and political scientists–confirms, supporting examples can be found quite easily. Despite the expressive impact of the courts and their rulings, political change does not happen because courts direct the polity to change; rather, it occurs because citizens organize and exert pressure at and on the right places and the right actors–in a variety of political domains and institutions.
Third, it suggests–as if acknowledging the unprecedented obstruction of a sitting President by the Republicans over the last eight years–that the President is a lame-duck from the moment he or she drops his or her right hand on being sworn in. No substantive legislation can be driven by that office; the Constitution offers no escape; a recalcitrant House of Representatives and Senate cannot be forced to do perform their legal duties. The President can merely nominate a Supreme Court Justice; and that too before the final year of office (apparently the new normal now given what has transpired since Justice Scalia’s death.)
It is into this impoverished and diminished political landscape that we are steered by the ‘but the Supreme Court’ argument for Hillary Clinton. We are being asked to settle for an immensely diminished Republic.