Thomas Geoghegan ponders what we lost when Clinton lost the election, didn’t flip the Senate, and couldn’t get Merrick Garland confirmed:
By a five to four vote, gerrymandering of congressional districts would have been struck down. Even more than “money in politics,” gerrymandering decides who controls the House of Representatives. A center-left Court might have made a redistricting system based on independent, non-partisan commissions the law of the land.
Of course, a liberal Court, would have been likely to reverse Citizens United. More importantly, it might have revisited an earlier, even more pernicious precedent, Buckley v. Valeo, the 1976 case that established that money is a form of speech. Now, if the Democrats ever do regain legislative majorities and pass campaign finance reform — say, at some point in the next twenty years — a conservative Court will cite Buckley and Citizens United to strike it down.
At some point, a center-left Court might have declared education a “fundamental” right. In Rodriguez v. San Antonio School District, a 1974 case, the Supreme Court ruled five to four that no such right existed under the Constitution, meaning public school children in different districts had no claim to equal state funding. Forty years later, in a far different world, there is even more reason to declare education a fundamental right. The enshrining of a constitutional right to public education would have been monumental. But now? It’s out of the question.
Or consider race discrimination. The 1976 decision in Washington v. Davis held that laws with racially discriminatory effects don’t violate the Equal Protection Clause of the Fourteenth Amendment as long as they don’t have a discriminatory purpose. In 2001, in Alexander v. Sandoval, the Court applied the same reasoning to narrow minorities’ ability to sue under Title VI of the Civil Rights Act. A liberal majority could have reversed those decisions and made it easier for victims of discrimination to have their day in court. Instead, a center-right Court will continue with the status quo, and may well dismantle what’s left of the Voting Rights Act.
If Geoghegan is sad, think of someone like me who has never known a liberal Supreme Court; hell, my earliest memory of SCOTUS was a photo that flashed during CBS Evening News‘ coverage of William Rehnquist’s confirmation hearings as chief justice of the Burger Court’s last year, in which eight men and one woman looked older than sequoia trunks rotting in the sunlight.
Basta. In politics, absolutes are a joke that God plays on pundits. Still, read that list of probabilities.