The Perilous Majority of Casey

or

Unicorn Voters Part II: The Doom-ening

 

People continue to talk about being Unicorn voters in this year’s election, despite the fact that I wrote a blog post on the subject. Come on now, people–once it goes on Dishonor On Your Cow, it is definitively settled, right? I mean, it’s not like I’m screaming in to the darkness, right?

Despite having definitively ruled on the subject, it continues to be a matter of debate. So I thought I would continue to address the issue as well. We’re going to discuss some of the small bits before we discuss the big wooly one people are forgetting.

As a housekeeping matter: A unicorn voter is a term introduced to me by my Unicorn Hunter brother in arms Monjoni, and it is someone like this: They will only vote for unicorns. Someone who is wise and kind, just and fair, honest and thrifty, who has never dirtied themselves with compromise or sullied their ideological purity by having to give an inch. They don’t just want a horse, which is awesome but expensive and occasionally poops in inconvenient locations and needs shots and food and all that normal boring malarkey. They want a unicorn, who is perfect in every way, all upside and no downside and craps out tasty ice cream.

In other words, they want THEIR candidate, and damn anything else. Because compromise is weakness, and ideological purity is king. They want THEIR candidate, and if THEIR candidate loses then the system is rigged, burn the mother-you-know-what-er down and start over cause Democracy is broke, and they sure as hell aren’t propping it up by voting for someone who ISN’T a Unicorn.

These people are good, honest, hard-working folks. You know, morons.

Part I: They Wouldn’t Get That Many Supreme Court Justices

This one is just dumb, because it ignores the reality of…well, reality. Reality being that thing that doesn’t go away when you stop believing in it.

Some memes, memers, and posters are complaining that people saying that a GOP President would get 2-4 SCOTUS Justices are over-inflating the risk. They’d probably only get one, say these apparent long-time watchers of Supreme Court trends and actuarial tables. I mean just look at Obam…

Wait, he got two. Ok, George W Bus…

Shit, he got two too. Ok, Clin…

RBG and Breyer? Balls balls balls. George H.W. Bush, he only got…

Souter and Clarence Thomas. Fuuuuudge. Maybe I should stop…

Ronald Reagan got 3? Ok, I give up. (Kennedy, Scalia, O’Conner). And he got to move Rehnquist from Associate Justice to Chief Justice, which almost counts as a whole separate appointment because of how powerful the Chief Justice is in finessing decisions?

True facts time here, kids. Bernie Sanders is strongest with the 18-25 and 25-30 sets, tapering off in favor of Hillary Clinton after that–this is well born out by the Iowa caucus. That means that for the largest groups of Sanders supporters, they have literally not been alive for a time when a President didn’t get at least two Supreme Court nominations. If they’re in the 25-30 set, they were even born in an era when Reagan got 3 Justices added and also got to pick a Chief Justice. And for the fact that even in ONE term, George H.W. Bush got two. And even IF the next GOP President is only one term and you want to call H.W. an aberration (Jimmy Carter, another one term President, got 0 after all), lets look at years:

Obama: Sotomayor 2009, Kagan 2010.

George W. Bush: Roberts 2005, Alito 2006.

Clinton: RBG 1993, Breyer 1994.

George H.W. Bush: Souter 1990, Thomas 1991.

Reagan: O’Connor 1981, Rehnquist 1986, Scalia 1986, Kennedy 1988.

All but one of the Presidents since 1980 got to fill all of their Supreme Court nominations within a span of two consecutive years. And Reagan got 2 of his picks and his choice of Chief Justice in the three years of 1986-1988. That means that once again for the entire life span of most Bernie Sanders supporters, is hasn’t just HAPPENED that Presidents have gotten to put at least two people on the Supreme Court in less time than one full term, it has all but been the RULE.

Part II: It’s Only One Term (or ‘I don’t understand what average life expectancy means’ and ‘I don’t understand the advantages of the incumbency’).

Another argument thrown out by left leaning unicorn voters is “Four years of a GOP President is not that much time, and four years of a train wreck could be what this country needs to have it be ready for (insert candidate, pretty much exclusively Bernie Sanders).”

Essentially this argument boils down to two elements: 1) Whichever one of the GOP clown car that ends up winning is going to be so poisonous and hideous he only gets four years, and 2) The Supreme Court Justices are not that likely to die during those four years.

Let’s first look at the first (for symmetry, if nothing else). Of the Presidents since 1952, the following have served only one term (along with the reason):

George H.W. Bush (Lost an election)

Jimmy Carter (Lost an election)

Gerald Ford (Chose not to run after serving the rest of Nixon’s term)

Lyndon Johnson (Chose not to run, served his whole ‘first’ term after serving just under 50% of Kennedy’s)

John F. Kennedy (Died).

So of 5 presidents since 1952 who served only one term, only 2 of them did so because they lost an election. The remaining three all served one term either by choice (because of the circumstances of their predecessor’s retirement) or death. Even Nixon was elected to a second term. Ignoring the three that are likely unrepeatable circumstances, that leaves 2 Presidents not elected to a second term versus the other 6 that did.

Two versus 8 (20%) is not the kind of odds I would like to be facing when the prospect of Presidents Trump, Cruz, or Carson. This is due to the fact that incumbency, the fact of being the derriere in the chair at the time the votes are cast, has an overwhelming power behind it. The Facebook meme has it right: Congress is re-elected roughly 96% of the time (See this fine and elegantly crafted link). The odds are not good at all that a popular revolution would rise up and throw the GOP out of the White House because people were sick to death of them–after all, that is the same logic the GOP thought would lead to Obama being a one term President.

But even if we accept the idea that against all odds we can make a GOP President pack his bags after a four year stunt, what about the second part of that? That they’re not likely to die anyway, so what is the big deal.

Just look at these people.

Ruth Bader Ginsburg is an 82 year old woman who has had pancreatic cancer, and looks like she might get blown off the chair if Elena Kagan sneezes too hard. Anthony Kennedy, the 79 year old man next to her with a stent already in his heart, looks like he is someone’s beloved grandfather you drive out to California so your kids can see him because you know the next time you can afford to do it he might not be around.

Hell, the entire front row has an average age of 73.6. John Roberts looks like a fresh faced youngster in the middle there by comparison, and it’s worth remembering that he is 61 years old–i.e. someone four years from retirement age himself. Remove him, and the average age jumps to 76.75.

Anthony Kennedy is 79, Antonin Scalia is 79, Ruth Bader Ginsburg is 82 (and again, a cancer survivor), and Stephen Breyer (the skinny gentleman over Scalia’s shoulder) is 77. And as I pointed out in my last article, the average life expectancy for men is 76 and for women is 81 in this country. Five Supreme Court Justices are over their gender’s respective average life expectancy, meaning that five of the 9 Justices are beating the odds every day they breathe.

So yeah. One of them is going to pass away from wholly natural causes between the years of 2017 and 2021. Scalia might get his wish to die on the bench, or RBG might be filing a dissent against the Grim Reaper. Because if one of them doesn’t pass away from wholly natural causes between those years, they clearly beat the Reaper at a game of Jeopardy and earned immortality.

And even ONE SCOTUS Justice matters, because…

Part III: The Shit You Care About is Barely Holding On (or, The Perilous Majority of Casey)

Let’s talk about Planned Parenthood v. Casey,  505 U.S. 833. Simply put, Casey was supposed to kill Roe. And it almost did, except for some extraordinary measures.

Casey was the first opportunity to overturn Roe v. Wade since two of the liberal justices responsible for it were replaced by justices appointed by George H.W. Bush. It was seen by the conservative community as being the case with which they would go back to the days before abortion was nationally legal, and therefore be able to kill it piece by piece across the country. No less than the United States Government joined in, filing an amicus curiae (friend of the court brief) to argue that the abortion restrictions in Pennsylvania (of which Casey was the governor) should be upheld because Roe was wrongly decided to begin with.

And it should have killed it. Rehnquist, Scalia, White, Thomas, and O’Conner were all appointed by GOP Presidents and who were expected to uphold the Pennsylvania restrictions. The only reason they didn’t was because of extraordinary efforts by Justice Souter to recruit Kennedy and O’Conner, by tailoring specific arguments to them and convincing them to sign on to an unprecedented three author majority opinion that stunned the country. It certainly stunned the other conservatives on the court–as Scalia’s bewildered dissent shows.

And even with that it ended up being a very messy plurality opinion.

After Casey, the tripartite authors were left as the defenders of abortion–even if only keeping the core holding of Roe, with Kennedy and O’Connor proving willing (both in Casey and otherwise) to allow other restrictions on abortion. Still, they were a fairly stout three keeping their legacy in Casey from being overturned. Souter eventually retired, but he was replaced by Sotomayor who is fairly well assured to keep up her predecessor’s legacy. But O’Conner was not replaced by someone who would keep that legacy going, being ultimately replaced by Samuel Alito–who never met an abortion restriction he didn’t want to uphold.

Because Souter, a consistent liberal, was replaced with a consistent liberal his vote is safe. But because O’Conner, who upheld abortion rights, was replaced with someone who won’t, that leaves the inconsistent Anthony Kennedy (79!) as the sole swing vote to preserve it.

Think about that. A 79 year old man is the only thing keeping Roe v. Wade from being overturned. A 79 year old man with a stent in his body to keep an artery open that has been in there for going on ten years. A 79 year old man who people joke about needing hugs and attention because he is the sole swing vote. That is how thin our hold on abortion rights are, how close we are to being set back to the patchwork abomination of inequality the country was before that decision.

And pretty much everything else you care about, if you’re vacillating between Sanders and Clinton, is on the same razor thin margin. For that matter if you’re debating between Cruz, Trump, and Rubio you might consider that all the things YOU care about are only secured by one 5-4 vote.

Citizens United? 5-4 (for the operative parts).

Heller v. DC? 5-4.

McDonald v. Chicago? 5-4.

Hobby Lobby v. Burwell? 5-4.

And on the side of things that were decided in the way liberals approve of:

Obergefell v. Hodges? 5-4.

Every single one of the ObamaCare decisions? 5-4.

It’s said that the only math that matters on the Supreme Court is 5-4. One change either way, and things either switched or are locked down completely. If Kennedy or Ginsburg retire or die and they are replaced by whatever far right Originalist they President Cruz drags out of BYU or Ave Maria Law School (America’s most conservative law schools), then the 5-4 decisions become 6-3, with the accompanying feeling of solidity in the mind of the legal community. Conversely if Kennedy or Scalia die and are replaced by a living constitution hippy from Charlotte School of Law or Northern Illinois University (most liberal university from the same article)* then the next Obergefell and ObamaCare are 6-3, and all of a sudden guns, money in politics, and religion go 5-4 the other way.

There is literally nothing more important than that. Supreme Court decisions have a weight to the that justices are rare to overturn, because once you get on the court you rarely want to think about your legacies being thrown out before your body is cold. Stare decisis, the principal that a precedent should stand unless there is a compelling reason otherwise, mingles with pragmatism to drive even Justices who talk a game about not caring about precedents to suddenly caring. Decisions are hard to overturn, painful when they are suddenly reversed,

Conclusion

Four years of a Republican President, with a Republican House and likely Senate, is enough to tip the scales for a long time to come. There is no reason to expect the next President will NOT get two SCOTUS nominees, as for the last 36 years they have always gotten two nominees per Presidency–even if they only served one term like George H.W. Bush. There is no reason to assume that a GOP President would only be one term, and the damage they could do is incalculable.

Don’t be a Unicorn voter. Don’t let perfect be the enemy of good, and don’t forget that the stakes are far higher than one single candidate. And if you think your candidate is more important than your beliefs or your issues, I have bad news: You aren’t supporting a candidate, you’re joining a cult.

So remember kids: Even if Unicorns poop out ice cream, if you eat it all you’re eating is poop. Vote smart, vote for issues that will define our country for decades. Don’t vote Unicorn.

 

 

*NOTE: Of course, they won’t hire anyone from BYU, Ave Maria, Charlotte, or Northern Illinois. They only hire clerks and Justices from the Ivies, because of course that’s where the only people who can know anything about law come from, right?