by Michael Dorf
How did we get to Trump, Republican control of Congress, and the potential for a deeply conservative Supreme Court? Republican hardball, structural forces, Democratic ineptitude, and sheer luck each played a role. Assessing the relative importance of each may provide clues to the future.
In the aftermath of the 2000 presidential election, a 5-4 Supreme Court, voting in a pattern that appeared to reflect the justices' respective partisan preferences rather than based on their longstanding commitments on federalism or justiciability limits, put a halt to a state-court-ordered recount of Florida's votes that could have resulted in Al Gore rather than George W. Bush becoming president. The result was important for policy, of course. At a minimum, a President Gore almost certainly would not have launched the Iraq War, with its subsequent destabilization of the Middle East. No Bush v. Gore, no ISIS. No ISIS, maybe no President Trump.
Bush v. Gore also had consequences for the Court. Anticipating the eventual nominations and confirmations of Chief Justice John Roberts and Justice Samuel Alito, Yale Law Professor Bruce Ackerman aptly titled his immediate critique of the ruling The Court Packs Itself. In hindsight, one might say that the Court packed itself on an ongoing basis, because at least one 5-4 decision of the Roberts Court may have played a critical role in the election of Donald Trump and Republican retention of Senate control. By gutting the Voting Rights Act in Shelby County v. Holder in 2013, the Court facilitated voter suppression efforts in swing states. We might also point to the weakening of campaign finance regulation by the 5-4 Roberts Court's rulings in FEC v. Wisconsin Right to Life and FEC v. Citizens United, but whatever the baleful long-term effect of these decisions, I doubt that they were critical in the recent election, when Democrats were not seriously under-funded relative to Republicans.
Meanwhile, self-replicating decisions by the Rehnquist and Roberts Courts will be reinforced by the Republican Senate's successful intransigence in denying Judge Merrick Garland confirmation hearings or a vote. Consequently, the best-case scenario for Democrats is the status-quo ante Justice Scalia's death.
I think it clear that for some time Republican (and to some extent Democratic) political actors have been playing what Harvard Law Professor Mark Tushnet has called constitutional hardball, breaking conventions but still working just barely within the bounds of judicially enforceable laws to entrench their partisans at every level and in every branch of government. Whether it is accurate to say that conservative justices are also playing hardball is a different question. It is possible to imagine that various unconscious cognitive biases simply led conservative (and liberal) justices to vote in ways that would lead to partisan entrenchment, even as they believed in good faith that they were just calling balls and strikes.
To my mind, the strongest evidence against the view that the conservative justices have been deliberately playing hardball is the fact that Justice Anthony Kennedy has voted with the conservative majority in the key cases--Bush v. Gore and Shelby County--even though he must know that the sort of justice likely to be appointed by a Republican president with a Republican Senate poses a substantial risk to his most important legacy, the gay rights cases, notwithstanding the fact that President-elect Trump himself regards those cases as settled. It's possible, of course, that Kennedy is an outlier, but even for the others (again, including liberals in the other direction), I think that unconscious bias is a simpler, and thus more likely accurate, account than a conspiracy.
To focus on the quirks of particular legal doctrines is arguably myopic. After all, there are also large structural forces at work.
First, consider a hard-wired constitutional feature, the Electoral College. The Democratic presidential candidate won the popular vote in four of the last five elections, but the Electoral College (with an assist from the SCOTUS in 2000) gave the presidency to the Republican candidate in three of those elections. We will now likely hear calls to abolish the Electoral College, which will surely fail, because the constitutional amendment process tends to benefit the states that also benefit from the Electoral College. Perhaps the national popular vote initiative will eventually garner support from sufficient states to set up a test of whether it is constitutionally valid. But for now at least, this hardwired feature of the Constitution plays a large role in determining the course of our politics and thus, through judicial appointments, constitutional interpretation.
Second, as my colleague Joseph Margulies notes in his most recent column on Verdict, there is a rhythm and cycle to electoral victories. The winners recede from politics, while the losers organize and gird for the next battle. Thus, in modern times, there is a tendency for control of the White House (and to an extent Congress) to yo-yo back and forth between the parties, quite apart from their respective policies.
Third, consider the two leading competing theories about why Trump won the Electoral vote: 1) More people are racist/sexist/xenophobic or willing to tolerate racism/sexism/xenophobia than was commonly appreciated; or 2) The post-Great Recession economic recovery has left a great many people behind, and as the candidate of continuity, Clinton paid the price for that. I don't have a well-informed view about the relative contribution of these factors to the election result, but I would note that both explanations are "structural" in the sense that they rely on pre-existing features of, respectively, American culture and economics, rather than particular strategies or tactics.
True, the particulars played a role. By nominating Trump rather than a more conventional dog-whistler, Republicans activated bigotry (or tolerance for bigotry) to a greater extent than usual, while by nominating Clinton rather than Sanders, the Democrats undercut their ability to challenge Trump's claim to be the better economic change agent. But the underlying structural factors needed to be there in the first place in order for these decisions to make a difference.
The foregoing discussion of the nomination of Clinton suggests another factor: Democratic ineptitude. We don't know how a Trump-versus-Sanders general election campaign would have turned out. Pre-convention polls generally had Sanders outperforming Clinton in a hypothetical matchup with Trump, but the utility of such polls is open to question. As a self-described "socialist", Sanders would have been a huge magnet for red-baiting. Some establishment Republicans who ended up in the never-Trump camp might have held their noses and voted for Trump over Sanders. Or a Trump-versus-Sanders campaign might have attracted a more viable third-party candidate than Gary Johnson or Jill Stein--Michael Bloomberg, say--which probably would have helped Trump. My own tentative view, for what it's worth, is that Sanders probably would have won, partly because he would have held the upper midwest but mostly because the kind of irrational hatred that many voters--including moderates--felt for Hillary Clinton takes years to build.
Now none of that speaks to ineptitude, of course. Despite clear bias in favor of Clinton by Debbie Wasserman Schultz and others in the DNC, the primaries weren't "rigged" against Sanders. The worst that they appeared to do was to schedule Democratic debates so as to minimize viewership and feed Clinton a few obvious questions. These were almost certainly not decisive. Sanders ended up losing to Clinton by a wider margin than the margin by which she lost to Obama in 2008. The choice of Clinton over Sanders was made collectively and mostly in virtue of the fact that Clinton had stronger appeal for minority voters than Sanders did. (Why that was so is itself an interesting question that I'll leave aside for now.)
So where's the ineptitude? Although I thought that Clinton ran a reasonably competent campaign, there were unforced errors. John Podesta's inability to detect an obvious phishing scam has to be high on the list. Even higher in my view--because it is substantive--is the greed of the Clintons.
It should have been clear since at least the summer of 2008 that a Democratic candidate for president should not be seen as too cozy with the banks. And while the substance of what Hillary Clinton told her high-paying banker audiences (as revealed by WikiLeaks) was fairly bland, the very fact of the speeches looked terrible. So did some of the other arrangements, most notably Bill Clinton's inexcusable receipt of nearly $18 million to serve as honorary chancellor of a for-profit college. Did these instances of greed by the Clintons render Hillary anywhere near as unfit for office as Trump? Of course not. But they did open the door for swing voters to conclude that both Trump and Clinton profited from bilking people and thus neutralized much of any Democrat's appeal against any Republican: The notion that the GOP is the party of the rich while the Democratic Party serves the working people.
One can also point to earlier episodes of Democratic ineptitude, perhaps none greater than the infamous Palm Beach County "butterfly ballot" designed by a clueless Democratic official that cost Al Gore over 2,000 votes in Florida and thus the presidency in 2000.
Speaking of butterflies, there is also the powerful "butterfly effect" or chaos theory, the notion that small perturbations in initial conditions can have powerful and unpredictable consequences downstream. Consider a couple.
(1) Suppose that Gore had won in 2000 because there had been no butterfly ballot. As I noted above, there would have been no Iraq War. The terrorist attack of 9/11 might even have been averted, because before 9/11 the Bush Administration treated the al Q'aeda threat as much less pressing than its predecessors in the Clinton Administration did. A Gore Administration likely would have pursued greater continuity in aiming to disrupt Al Q'aeda. Without 9/11, there would have been no war in Afghanistan. And of course, Gore would have named the justice to replace CJ Rehnquist, which would have dramatically altered subsequent jurisprudence, even if, in this alternative universe, Justice O'Connor remained on the Court longer.
But a Gore victory in 2000 and, let's suppose, 2004, might not have averted the 2008 financial crisis, which was set in motion by policies supported on a bipartisan basis in the 1990s, none more so than the repeal of Glass-Steagall in 1999. If Gore had been in office in 2008, then the Republican nominee (who would not have been John McCain, who would gotten the nomination in 2004 in this universe) would have had a decided edge. A Republican would have thus won in 2008 and, depending on how successful his or her policies were in combating the Great Recession, maybe in 2012 as well. In this counter-history, 2016 would have been a Democratic year.
(2) Now suppose that President Obama hadn't named James Comey FBI Director, instead choosing a Democrat. Or suppose that Bill Clinton hadn't initiated the outside-the-airplane conversation with AG Loretta Lynch, and that Lynch, rather than Comey, had made the decision whether to bring charges against Hillary Clinton. Or that Anthony Weiner hadn't, well, you know. Had any of these butterflies flapped their wings just a little bit differently, we might have been spared Comey's intervention in the election, which might have been enough to swing the votes needed for a Clinton Electoral College victory.
Do I know any or all of this would have happened? Of course not. That's the point about chaos theory. It's inherently unpredictable, and the more time that passes, the more unpredictable the future becomes.
That, finally, leads me to a place of some equanimity. The next few years will be awful. Their impact on the future--chiefly through environmental policy--also will likely be awful. But it's really impossible to know what the impact of a Trump presidency will be in the long run. And by the long run, I don't mean when the sun swallows the Earth. I don't even have in mind a Keynesian time frame of when we're all dead. As some of the examples discussed here suggest, the long run could be just a few years.