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The RBG Election

Another four years of Trump will widen the conservative tilt of the Supreme Court. So why aren't the Democratic candidates talking about it?

Alex Wong/Getty Images

With Joe Biden’s entry into the Democratic presidential race last week, there are now at least 20 candidates vying to challenge President Donald Trump next November. They run a wide gamut of ideological stances, from the democratic socialism of Bernie Sanders to the reformist liberalism of Elizabeth Warren to the nostalgic centrism of Biden, Beto O’Rourke, and Cory Booker. Those differences are important. But they’re ultimately not as important as their Supreme Court nominees.

Trump partially owes his presidency to a quirk of fate: Justice Antonin Scalia’s sudden death in February 2016. When Trump became the presumptive nominee in the ensuing months, most conservatives rallied around him out of desperation to prevent Hillary Clinton from filling the vacancy. With Democrats now entering a bruising primary season, it’s an open question whether the party will similarly unite to prevent Trump from replacing a justice like Ruth Bader Ginsburg—no matter the eventual nominee.

Scalia’s death was a psychic shock to the Republican Party, which held the longtime justice in as much esteem as liberals hold Ginsburg, and it left the court evenly split between four conservative and four liberal justices. Senate Republicans, led by Mitch McConnell, quickly declared that they would not consider whomever Barack Obama named to replace him—and followed through by ignoring nominee Merrick Garland. That strategy effectively bound the court’s fate to the outcome of November’s election. Conservatives rose to the challenge, rallying around the Republican candidate despite his flaws.

“I believe if Justice Scalia had not passed away when he did that there’s a very good possibility Hillary Clinton would be president of the United States right now,” Texas Senator Ted Cruz remarked last June after Anthony Kennedy’s retirement. Cruz’s own endorsement of Trump in 2016 proves his point. He famously spurned Trump during a primetime speech at the Republican National Convention that year, telling a national audience to “vote your conscience.” When he eventually did endorse Trump the following September, Cruz cited Trump’s list of prospective Supreme Court nominees as the foremost deciding factor.

“For anyone concerned about the Bill of Rights—free speech, religious liberty, the Second Amendment—the Court hangs in the balance,” he wrote in a statement announcing the decision on Facebook. “I have spent my professional career fighting before the Court to defend the Constitution. We are only one justice away from losing our most basic rights, and the next president will appoint as many as four new justices. We know, without a doubt, that every Clinton appointee would be a left-wing ideologue. Trump, in contrast, has promised to appoint justices ‘in the mold of Scalia.’”

Trump himself used the threat of a liberal Supreme Court to compel loyalty from the fractured Republican Party. “Whether you’re the governor of Ohio, whether you’re a senator from Texas, or any of the other people that I beat so easily and so badly, you have no choice,” he told reporters after the GOP convention in July, referring to John Kasich and Cruz. “You gotta go for Trump. Supreme Court justices.” The Wall Street Journal’s conservative-leaning editorial board declined to endorse a candidate, though it spoke favorably of Trump’s judicial pledges. “For many voters, the future of the Court is by itself enough reason to support Mr. Trump,” the board wrote on the eve of the election.

In a lengthy feature in October 2016, National Review’s Mario Loyola wrote that “allowing Hillary to nominate the successor to Antonin Scalia would be one of the worst disasters in the Republican party’s history” because it would “give progressives a majority on the Court for the first time since 1986.” Erick Erickson, a conservative pundit who flits between anti-Trump and pro-Trump camps, made a similar case. “With Hillary Clinton, the Supreme Court will fall into the hands of the left for a generation at least,” he wrote in September 2016. “The devastation to our social fabric will know no end.” So did Hugh Hewitt, who saw in Scalia’s death and Clinton’s possible election an existential threat to American conservatism. “It cannot survive a strong-willed liberal majority on the Supreme Court,” he warned in July 2016. “Every issue, EVERY issue, will end up there, and the legislatures’ judgments will matter not a bit.”

These arguments did not persuade everyone on the right. Some conservatives still saw Trump as a more immediate threat to the nation’s constitutional order. National Review’s Ian Tuttle argued that the Supreme Court moved too slowly to do as much damage as Hewitt feared, and that Republicans would be able to win future elections and fill future vacancies to mitigate or reverse it. One of Tuttle’s colleagues, Matthew J. Frank, wrote that one of the people on Trump’s Supreme Court shortlist told him that being named on it still wasn’t enough to persuade them to support his candidacy.

Republican voters, however, responded differently. Exit polls later found that 26 percent of Trump voters listed Supreme Court nominations as the most important factor in their decision, compared with 18 percent of Clinton voters. That may sound like a narrow gap, but the election was effectively decided by an even narrower one: 78,000 voters in Michigan, Pennsylvania, and Wisconsin determined whether Trump or Clinton would secure a majority in the Electoral College. “There were about 6.6 million votes cast for Trump in those three states,” The Washington Post’s Phillip Bump noted last June. “National exit polls suggest that 1.7 million of them thought that the court was the most important reason to cast that vote.”

Will liberals rise to the occasion this time? In some ways, they face a tougher challenge than conservatives did. The stakes for the court in 2016 couldn’t have been more apparent. Thanks to Trump’s victory and Kennedy’s retirement, Democrats can’t hope to secure a liberal majority on the court any time soon. That doesn’t mean 2020 won’t matter for the court’s trajectory, though. There’s a tangible difference between a 5-4 conservative court and a 6-3 one. The court’s liberal wing would then have to persuade two of their colleagues to secure a decision, not just one. And since it only takes the votes of four justices to hear any case, a third justice from Trump would effectively give conservatives full control of the court’s docket.

Despite these stakes, the Democratic candidates haven’t yet made the Supreme Court central to their campaigns. Complaints about McConnell’s treatment of Garland and the rightward turn in the lower courts abound, as does an undercurrent of support for court-packing to reverse their Trump-era defeats. But the Democrats haven’t articulated why this is another make-or-break election for control of the nation’s highest court. And if they don’t make the case to voters now, their next chance will come too late.