The two main candidates for the United States presidency both have a problem appealing to voters in terms of favourability and trustworthiness. Personally I consider the claims of Hillary Clinton’s dishonesty to be overblown, which I wrote about here. In fact, analysis of her statements in the course of the election shows she is actually one of the more honest politicians. However, once someone has decided that they can’t trust someone it’s very difficult to change that. I don’t think Donald Trump can be trusted, and I can’t imagine that opinion ever altering.
Many US voters feel the same about one or both the two main candidates. Some have decided to vote for one of the third party candidates instead, or to not vote at all. Because of the way the US electoral system works though both those options are effectively a vote for the Republican or Democratic candidate you want to win the least. Many Republicans in particular have decided to vote for their party’s candidate not because they support him, but because they think he will make better appointments to the Supreme Court.
The impression given is that there is a wide ideological divide on the court and that there is a lot of dissent between the liberal and conservative justices. As can be seen from the graph below it is often possible to predict a justice’s decision based on their political affiliation. However, I analysed the decisions of the US Supreme Court from 2008-2015 and discovered that several of the assumptions that people make about the way the court votes are not as clear-cut as everyone thinks. What is clear though is that the Court is currently more conservative than at any time in at least the last eighty years. Therefore, also contrary to the current messaging, if it became more liberal that would not be something unusual for the country.
During the eight years of President Obama’s term the Supreme Court has made 646 decisions. What may surprise many is that 345 (53%) of decisions had no dissents, in another 43 (7%) only one justice dissented, and 78 (12%) saw just two justices dissenting. In seventy (11%) cases, three justices dissented. And despite what many may assume, those dissenting are not automatically ideologically aligned. In the 148 cases where two or three judges dissented from the majority, the dissenters were a mix of conservative and liberal justices in 35 (24%).
And so we come to the 5-4 decisions, which are the ones Republicans are presumably most concerned about because they’re the ones that might change if there are a majority of liberal justices on the Court. There have been 110 5/4 decisions over the last eight years, which is 24% of the total. However in 27 of those, the four dissenters were a mix of liberal and conservative justices so they should not concern those worried about conservative ideological purity. Also, there was no conservative justice who stood out as siding with liberal justices either, and more often than not, there was more than one conservative justice siding with the liberal justices in dissent. In the 27 cases where the four dissenters were a mix of both liberal and conservatives, 26 included Justice Kennedy, 20 included Justice Alito, 19 included Justice Thomas, 17 included Justice Roberts, and 16 included Justice Scalia.
In the 39 cases (6% of all cases overall) where all the dissenters were conservatives, the results are again are not quite what I suspect Republicans would expect. I think they would say that their hero Justice Scalia was the one who led the charge for conservatives and that Justice Roberts was the one who betrayed conservatives by siding with liberals. This is not what the statistics show. The conservative justice who sided with three others in dissent most often was Justice Alito (38) followed by Justice Roberts (36), and Justices Scalia and Thomas (both 34). Justice Kennedy was one of four opposing conservative justices just nine times.
So it’s really only a tiny percentage of cases (7%) when the four dissenters were the four liberal justices that the decision of the Supreme Court might have been different if the composition of the court was different. As an outsider I find this disturbing in itself. I couldn’t even tell you the names of any members of the New Zealand Supreme Court, let alone their political or ideological affiliation, and I suspect that’s true in most countries in the OECD. That’s because appointments are apolitical and decisions are based strictly on the law and not ideology. That is clearly not the case in the United States. Decisions are sometimes extremely contentious and justices from both sides of the political aisle are accused of letting their personal views effect their decisions.
What it comes down to is that there are just five things that conservatives have a major problem with and that they worry a more liberal Supreme Court will change. However, analysis of these issues shows that they do not need to be concerned.
This has been a political hot potato for years now, and it’s got a lot hotter since the 2006 Supreme Court decision (District of Columbia v. Heller) that decided the Second Amendment said everyone had the right to own a gun. As part of his election campaign, Donald Trump has been trying to convince voters that Hillary Clinton would abolish the Second Amendment, a claim that Politifact has rated False on their Truthometer. Politifact could find no evidence that Clinton had ever said such a thing so they asked the Trump campaign for their evidence. The Trump campaign did not respond. When asked their position, the Clinton campaign specifically stated that they did not want to abolish the Second Amendment.
Yesterday of course, Trump’s attempts to convince voters that Clinton wanted to take their guns away took a new turn with his failed attempt at humour when he suggested that assassination was an option in stopping Clinton if she won the election.
As Clinton stated in a Tweet:
"A person seeking to be the President of the United States should not suggest violence in any way." pic.twitter.com/Uu55CBCqdK
— Hillary Clinton (@HillaryClinton) August 9, 2016
As an aside, I loved Elizabeth Warren’s responses:
.@realDonaldTrump makes death threats because he's a pathetic coward who can’t handle the fact that he’s losing to a girl.
— Elizabeth Warren (@ewarren) August 9, 2016
Your reckless comments sound like a two-bit dictator, @realDonaldTrump. Not a man who wants to lead the greatest democracy on the planet.
— Elizabeth Warren (@ewarren) August 9, 2016
Even if Clinton wanted to abolish the Second Amendment personally, which there is no evidence she wants to do, it would be political suicide to even try. And whether you like Clinton or not, you have to admit she’s extremely savvy politically. Clinton has stated that her focus in relation to gun rights is simply to ensure that those who should not have firearms cannot get them. That position is consistent with a majority of USians and not at all radical.
Abortion has also been as extremely controversial issue ever since the Supreme Court made it legal in Roe v. Wade in 1973. The Republican platform is to make abortion illegal in all cases including rape, incest, and the life of the mother. This position is extreme and one not the one supported by a majority of USians. By a tiny majority, USians are pro-choice, not anti-choice as this Gallup poll shows:
Further, data shows that for more than twenty years around 80% (currently 81%) of USians consistently consider that abortion should be legal in at least some circumstances:
Therefore if someone is worried that they’re going against what most people want regarding abortion by supporting Clinton over Trump, they’re not. Further, abortion being legal does not make it compulsory. Everyone continues to be able to exercise their personal choice. What they cannot do, and should not be able to do in a free country, is force their choice on another person.
The third thing that many conservatives are concerned about is the legalization of same-sex marriage. In recent years there has been a big change in public opinion. Five years ago the shift occurred so that a majority now support same-sex marriage in the United States, and that majority has increased ever since:
This trend is particularly marked amongst younger people and therefore is likely to continue. According to the Pew Research Center data, support for same-sex marriage amongst millennials (those born after 1981) is currently 71% and 56% in generation X (those born 1965-80). Republicans may have the impression that there is little support for same-sex marriage if a majority of their friends have the same political view as they do because the Pew survey notes a noticeable difference in support based on political identification: marriage equality is supported by 70% of Democrats, 61% of Independents, but only 33% of Republicans. However, like abortion, making same-sex marriage legal does not make it compulsory, it has absolutely no effect on anyone else, and the ability of same-sex couples to marry has a positive effect for both them and society as a whole.
This issue is a canard. There is no evidence that anyone’s religious freedom has been affected or will be affected by any actions of a Clinton presidency. Religious freedom is protected by the US Constitution and despite fearmongering by Donald Trump and others, there is absolutely no indication that this is going to change. The point is, someone else getting rights you have always had does not mean you are losing rights.
Clinton has said she wants to reverse the Citizens United v. Federal Election Commission decision. If you think big money belongs in elections then I doubt anything I say can convince you otherwise. However, are you so committed to this that you would vote for a sociopath for president on the off-chance that Clinton can achieve this goal? Following the 2014 elections the Brennan Center for Justice did an analysis of money spent in the senate races. As reported by US News, they found:
… outside spending more than doubled since 2010, to $486 million. Outside groups provided 47 percent of total spending … in 10 competitive races in [2014’s] midterms.
“The premise that the Supreme Court was relying on, that these groups would be truly independent of the candidates themselves, is very questionable,” says Commissioner Ellen Weintraub, one of three Democrats on the six-member Federal Election Commission. …
The court effectively has said a donation of $1,000 does not, legally speaking, indicate a stronger association with a candidate than a donation of $10. So even when a candidate is aware of a huge donation to his or her single-candidate PAC, it’s not considered a problem.
“Plainly, if you worry about the corrupting influence of somebody making a million-dollar contribution directly to the candidate, the notion that the candidate can’t be corrupted by a million-dollar contribution that they know about to a super PAC that’s advocating solely on their behalf – it just doesn’t make sense to a lot of people,” [Weintraub] says.
As the rules are currently written, these PACs are able to circumvent restrictions preventing them from directly coordinating with campaigns, even though they’re often run by members of candidates’ inner circles. Sometimes those efforts are literally laughable … as campaigns and PACs hide their unofficial coordination in plain sight, such as through public announcements of their plans for television ad buys or through out-of-the-way Twitter accounts. …
As a result, a small group of wealthy donors has gained even more influence on elections, and are able to maintain that influence once candidates take office.
Of the $1 billion spent in federal elections by super PACs since 2010, nearly 60 percent of the money came from just 195 individuals and their spouses, according to the Brennan Center report. Thanks to Citizens United, supporters can make the maximum $5,200 donation directly to a candidate, then make unlimited contributions to single-candidate super PACs.
The huge amount of money coming from a small number of donors should be a concern to everyone. It flies on the face of the principle of “one person, one vote.”
So if the only reason you are voting for Donald Trump is you think he will nominate better Supreme Court justices, this really isn’t something you need to worry about. You can vote for Hillary Clinton. She will nominate highly qualified justices who, despite Trump’s fearmongering, will not ruin the country. And in addition you won’t have to worry about the dangers of a president who clearly does not have the ability or temperament to do the job.
Update: 14 August 2016
In the post above I noted that the US Supreme Court is currently more conservative than is has been for many years. What I was unaware of is that it is also more unpopular than it has been for many years. Gallup has been surveying public opinion of the Supreme Court, and approval is currently only 42%. It seems that the more liberal the court is, the more its decisions find favour with the USian public.
This is another reason conservatives should not be concerned that the Supreme Court may become more liberal if Hillary Clinton becomes president – that simply reflects the mood of the country as a whole. I would also note that the last time the approval rating of the Supreme Court was this low was when the Heller decision was made i.e. when they reinterpreted the Second Amendment to mean that everyone had the right to own a gun. The country will not go into a moral spiral if you vote for Clinton, who is clearly the safer choice.