Bernie Sanders and Election Season at the Supreme Court

Part of the Series

Beyond the Sound Bites: Election 2016

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The Supreme Court has completed its 2015-16 calendar of cases ending in June, when it normally issues its most political decisions. After a fairly quiescent 2014-15 term, cases pending decision on the court’s docket will affect the important Democratic constituencies of women, labor and communities of color; possibly weaken majoritarian policies on health care and voting rights; and even rule on a significant immigration issue for good measure.

Politico sums up: “With at least five core Obama policies on the line … Democratic insiders are bracing for the Supreme Court to dismantle huge chunks of core issues for the president and other Democrats.” One experienced Supreme Court litigator finds it “hard to imagine a set of issues that could have as great impact and are as politically salient in an election year.”

The bulk of this politically charged agenda will likely go public about the time that the primary season is ending in June, a month before the Democratic National Convention in July.

If the five Republican majority of the Roberts court are feeling as arrogantly supremacist as they usually do, they could in rapid succession offend virtually the whole Democratic coalition in this intense and restive political season. This could present one of those important moments in history when a politicized Supreme Court incompetently makes itself the key issue in the campaign. Similarly historic elections were expressly waged in 1860 and 1912 against a court captured, respectively, by slave power oligarchs in Dred Scott or Gilded Age plutocrats in Lochner-era decisions, and less overtly in FDR’s 1936 landslide election, which enabled him to finally curb the judicial supremacist threat that jeopardized his New Deal program.

The key issue in the 2016 election is already one for which recognition of the court’s responsibility has been building for two generations, since its Buckley v. Valeo (1976) decision distorted the US Constitution on flimsy grounds to legalize political corruption. Presidential candidate Bernie Sanders has clearly defined this central issue of the campaign: “Very little is going to be done to transform our economy and to create the kind of middle class we need unless we end a corrupt campaign finance system which is undermining American democracy.”

It is likely, then, that Sanders will fashion some response to the Roberts court, both as the principal creators and enforcers of the “corrupt campaign finance system which is undermining American democracy,” including by means of its infamous Citizens United decision in 2010, and also as partisan legislators in robes defying the public will on a gamut of issues affecting Democrats later this year.

The underlying problem is one and the same: a judicial supremacist court majority that has been making political decisions at will while corrupt politicians refuse to use their power, as it is their duty to do, to confine the court to its constitutionally separated judicial powers.

Sanders might have an opportunity to influence the Democratic Party platform on this issue as a consolation prize for finishing second in a surprisingly strong challenge. But more likely he will be responsible for deciding the plank concerning the Supreme Court on which he will run in the general election. An indication that the latter is more likely true was suggested when pollmeisterNate Silver’s FiveThirtyEight team, which has been underrating Sanders’ polling strength from the beginning, recently shifted its tone. One FiveThirtyEight writer recognized that “people started looking more seriously at Sanders in December, and I’m not really sure why.” It may be because “people” recognized, after taking a closer look, that the exclusion of independents from the polling of partisan Democrats systematically understates Sanders’ support among likely primary voters. Sanders’ true numbers were better disclosed by his consistently superior results to those of Clinton in their matchups with Republicans.

The mass media have been misleading the public into believing that Sanders is behind, and his insurgency is quixotic, when he is actually ahead with the public. This can be seen when all likely voters are included in the polling samples, as they would be in an ordinary election, which is not restricted to partisan Democrats and Republicans. Sanders is right now winning this election, and will also win in November, if an outdated, privatized complex primary selection process does not defeat him by effectively turning his voters away from the first round of voting.

Silver has therefore just figured out, for example, that “Bernie Sanders is the only candidate in either party with a net-positive favorability rating” and so, “well then, who knows, maybe this time really is different?” For the first time in 40 years, democracy is breaking out in the plutocratic United States. Pollsters and the mass media that employ them are behind the curve in reporting it. If this forecast is correct, then to fulfill his promise for a solution to the corrupt political system he is running against, Sanders will need to develop an authentic strategy for dealing with the Supreme Court, which corrupted democracy just 40 years ago, and never looked back.

If Sanders buys into the judicial supremacy ideology that has immunized the Supreme Court from responsibility for its errors and violations for 40 years, then he will not deliver the solution his campaign promises. But if he develops an authentic strategy for harnessing the court as a democratic institution under the US Constitution, he will have to promote that strategy in opposition to President Obama, and therefore implicitly also Hillary Clinton who is clearly running for Obama’s third term, or George W. Bush’s fifth term, from a Sanders perspective.

Even more than Bush, Obama has been consistently serving the plutocracy by making the system even more corrupt and then using his bully pulpit for propaganda designed to divert public attention from the problem of plutocracy, and especially from its available solutions. Obama even ventures the Orwellian suggestion that Sanders is causing “democracy [to] break … down” by mobilizing partisan energies against the plutocracy.

It will be the task of Sanders to explain the authentic solution for the main issue on which he is running to a public from whom the corrupt system he opposes has deliberately hidden the key. That solution must include, at last, effectively using executive and legislative powers to exclude the Supreme Court from deciding political questions that are assigned by the US Constitution, as in any democracy, to the elected branches of government.