The Supreme Court will probably overrule decades of progressive precedents and strike down the next Democratic president’s reforms. You would not know this from watching the 2020 Democratic presidential debates. Wednesday’s showdown in Atlanta, the fifth so far, did not include a single question about the courts. Earlier debates allowed for brief discussions of the Supreme Court, but every candidate dramatically underestimated the threat it poses to the Democratic Party. Both the candidates and the moderators appear to be astonishingly naïve about the judiciary’s lurch to the right under Donald Trump. And it is pointless to discuss the Democrats’ ambitious proposals without explaining how they are going to survive at SCOTUS.
It’s not just the debates—Democratic politicians rarely talk about the courts at all. There is an enthusiasm gap between Democrats and Republicans when it comes to the judiciary: GOP voters are more likely to be motivated by the opportunity to fill judicial vacancies, which is why Trump ran on a promise of appointing archconservative judges. Democratic voters focus more on individual political issues, and their party has never prioritized judges—or campaigned on the fact that every political dispute is ultimately resolved as a judicial question. This complacency will prove catastrophic for progressives now that Justice Brett Kavanaugh has replaced Justice Anthony Kennedy, shoring up a conservative majority that will obstruct liberal policies for a generation.
Consider a topic that the candidates discussed extensively on Wednesday night: abortion. If Roe v. Wade “gets overturned,” Rachel Maddow asked Amy Klobuchar, “would you intervene as president to try to bring that access back?” Klobuchar responded that, indeed, she would “codify Roe v. Wade into law,” to loud applause. Every major candidate has also pledged to “codify” the 1973 ruling establishing a constitutional right to terminate a pregnancy. They take different approaches that all lead to the same place: a crushing loss in court.
Some candidates, like Kamala Harris, have proposed legislation prohibiting states from unduly restricting abortion access. Harris’ bill would recognize a right to abortion in the 14th Amendment and bar states from infringing upon that right without federal approval. But a Supreme Court that does not uphold Roe will not let Congress enforce abortion rights in the states. SCOTUS has already ruled that Congress cannot protect a constitutional right that, according to the court, does not exist. So if Roe goes, Congress couldn’t use its authority under the 14th Amendment to stop states from outlawing abortion.
Cognizant of this problem, Elizabeth Warren has proposed a statute that would regulate abortion on the federal level, preempting states from doing so themselves. Her idea has merit, as Congress does have the power to supersede state laws that stand in the way of its aims.
But the Supreme Court held in 2018 that Congress cannot rely on preemption when it regulates states rather than “the conduct of private actors.” The court explained that the federal government may not “commandeer” states by forbidding them from passing legislation. But Warren’s plan—which asks Congress to “prohibit states from interfering” with “abortion services”—appears to do just that. The conservative justices may thus rule that Warren’s bill unlawfully commandeers state governments. They could also go further, ruling that Congress does not even have authority to regulate abortion in the first place because it is not sufficiently connected to interstate commerce. Either route would kill the Warren plan.
Not to pick on Warren, but her other big structural changes would also be imperiled by the courts. Her wealth tax would compel the ultrarich to pay annual taxes on property, real and personal, as well as financial assets. But conservatives are already developing an argument that this plan violates the constitutional rule that any “direct tax” be apportioned among the states on the basis of population. Her health care plan, meanwhile, is funded in part by forcing states to redirect money from existing programs into “Medicare for All.” But in the first Obamacare case, the Supreme Court curbed Congress’ power to tell states how they must spend federal revenue. The courts could decide that Warren’s scheme amounts to illicit “economic dragooning” and deprive her program of $6 trillion.
It isn’t just progressives like Warren who have reason to fear SCOTUS. Self-styled moderates like Klobuchar and Pete Buttigieg should also be gravely worried. On Wednesday, both candidates endorsed H.R. 1, a sweeping elections bill passed by the House of Representatives. Buttigieg singled out the measure’s requirement that each state adopt an independent redistricting commission to draw congressional lines. Even if Democrats made H.R. 1 the law, however, this anti-gerrymandering provision may well fall. The Supreme Court seems primed to find that Congress’ authority to regulate federal elections does not permit it to mandate the creation of 50 state redistricting commissions. Having already refused to police partisan gerrymandering, the conservative justices could soon bar Congress from stepping in and protecting voters from this scourge of democracy.
The list of suspect proposals goes on. Warren’s Green New Deal would decarbonize the economy by dramatically tightening federal pollution standards, which courts could find to exceed Congress’ power to regulate commerce. Joe Biden’s more modest plan relies partly on “new executive orders” to repurpose existing law as a tool in the fight against emissions. But President Barack Obama already tried that tack and got crushed at the Supreme Court. As a lower court judge, Brett Kavanaugh was a leading critic of the Obama administration’s efforts to expand the Environmental Protection Agency’s control over carbon. Now he can provide the fifth vote to block any Democratic presidents’ efforts to curtail emissions.
It’s not that Biden, Buttigieg, Harris, Klobuchar, Warren, and the gang don’t understand that the Supreme Court is a problem. It’s that they appear utterly delusional about the extent of the court’s threat to Democratic policy, and short on solutions to the peril they face. Harris and Warren have said they are “open” to adding justices to the Supreme Court to restore a liberal majority. (Whether it’s wise, court packing is undoubtedly constitutional.) Buttigieg and Bernie Sanders have floated a scheme to expand the court to 15 seats, rotating five appellate judges on and off the bench. (This scheme is almost certainly unconstitutional.) Biden seems uninterested in any kind of court reform.
These half-baked, scattershot responses suggest that the 2020 candidates have not seriously grappled with a looming crisis. The judiciary is now packed with Trump nominees who operate under the principle that Republicans can do anything they want and Democrats can’t do bupkis. These judges are poised to invalidate the next Democratic president’s signature policies. The Supreme Court is more conservative than it has been since the days when it tore down the New Deal. At future debates, every time a candidate touts some proposal, the moderators should ask what they’ll do when the courts strike it down. If the candidate has no answer, it’s safe to assume that plan will be dead on arrival.
