Not the Court—But Core Democratic Issues—Hang in the Balance with Supreme Court Vacancy

Feb 25, 2016

By Congresswoman Eleanor Holmes Norton

The refusal of Senate Republicans to even hold a hearing on President Obama’s Supreme Court nominee to replace Justice Antonin Scalia naturally generates controversy, even anger, among Democrats.  Even if Republicans come to their senses and at least hold a hearing, however, there is little reason to believe that a nominee of this president could get confirmed in the Senate, where Republicans outnumber Democrats 54-46.  Yet, Democrats could get trapped by focusing on the current confirmation kerfuffle instead of our core issues, which almost always end up in the Supreme Court.

For decades, Republicans have succeeded in making the Supreme Court a larger-than-life issue, particularly during presidential campaigns.  Democrats, however, have focused on policies, although these policies and a president’s entire legacy can be swept away by the Supreme Court. 

Count on Republicans to make the Supreme Court an even bigger issue following the passing of Scalia, one of the most conservative justices.  Yet, Democrats, particularly Democratic base voters, have the most to lose if the current 4-4 conservative-liberal stalemate were to become another 5-4 conservative majority under a Republican president elected in November.  For example, almost all the high-profile issues on the Court’s current docket, four already argued, involve issues in which Democrats are heavily invested (the Court may not issue opinions in all the current cases).  These cases include: whether district maps should be drawn to count the total number of citizens in an area or just the number of eligible voters; President Obama’s executive order permitting four million undocumented immigrants to remain in the U.S. and obtain work visas; affirmative action, testing yet another race-conscious admission program; a claim by religiously affiliated institutions that they are religiously complicit even if they can avoid offering contraception through their institutions by filling out an objection form; the first abortion case the Court has taken in almost ten years; whether public employees who do not join unions may be required to pay a fee only for the collective bargaining benefits they receive; and whether class action suits involving worker claims to overtime pay can be shown using statistical data instead of establishing damages individually.

Today, as in the past, Democrats have understandably targeted the issues nearest to them—from immigration, income inequality, criminal justice to the rights of minorities in our country.  Such a single-minded focus this year, however, could be fatal.  What matters most to Democrats is not the Supreme Court as an abstraction, but the disproportionate number of Democratic issues often controlled in the final analysis by the Court.  We must name the issues that most concern us so that they become a proxy for the Court.  We should stress how the Court—not the president or the Congress—makes the final decision on these issues.  We must point up our heavy losses under the Supreme Court 5-4 conservative majority, such as the Voting Rights Act, which Congress still has not renewed, and the case that struck down D.C.’s handgun ban, which made it more difficult for the states to enact laws to prevent gun violence.

It is a wonder that with five justices nominated by Republican presidents, Democrats have not lost more.  With Justice Scalia gone, whatever balance may linger is in mortal danger unless Democrats make the Court a priority by drawing on the issues that prove the case.