Election update: can Trump take over the Supreme Court?

You’ve got to admire the deity who decided the 2020 election needed a twist like this.

When news broke Friday that Supreme Court Justice Ruth Bader Ginsburg had died, battle lines immediately started being drawn in the fight for her replacement.

Senate majority leader Mitch McConnell vowed Donald Trump’s nominee will get a floor vote in the US Senate, just weeks from a presidential election.

Democrats promised retaliation, with Senate minority leader Chuck Schumer saying, “nothing is off the table.”

My immediate reaction on hearing the news was that this would help Trump. Republican voters have always prioritised the Supreme Court in a way progressive voters haven’t. In 2016, the prospect of a Supreme Court vacancy helped bring millions of wavering Republicans to the party line.

But after the developments of the last 72 hours, I’m no longer so sure…

The most important election of your life – even if you’re older than three

Every four years, politicians in both camps like to say this is the most important election of our lives.

The warning is so overused, one journalist did the mental exercise of trying to determine the least important election of our lives (it was 1996, a time of peace, prosperity, low stakes policy differences, and of course, no Supreme Court vacancies on the horizon).

The last part is crucial. US Supreme Court justices hold lifetime appointments. The nine justices are the closest thing to a monarchy the US has today.

Even decades-old verdicts the Court has made still reverberate today. In 1973, the ruling in Roe v. Wade legalised abortion. In 2012, the Court upheld Obamacare, and with it, health insurance for tens of millions of people.

And of course, in 2000’s Bush v. Gore, the nine justices were the only Americans who got to vote a second time for who they wanted the next US president to be. Their second votes counted for a lot more than their first.

George W. Bush, of course, would go on to start a war of conquest, paired with a conservative domestic policy agenda.

And crucially, he would nominate two new justices to the Court when two retired over his eight-year presidency. These younger, more conservative justices given lifetime appointments would strike down campaign finance legislation, open the door to more corporate influence in US politics, and chip away at progressive laws over time.

Given the choice between controlling the Senate or controlling the Supreme Court, Republicans would absolutely prefer the Court, as it would allow them to strike down liberal legislation with or without a foothold in Congress – not just for one congressional term, but for decades through lifetime justices.

But today, it looks like the decision isn’t that simple…

Democrats don’t have a lot of ways to stop a nomination today.

They can point out the hypocrisy of Republicans refusing to consider Obama’s nominee in February 2016, eight months away from the election, saying it was too close and the American people deserved a vote, while ramming Trump’s nominee through with Election Day now six weeks away.

But charges of hypocrisy have never stopped Mitch McConnell, whose biography The Cynic by Alec MacGillis is a great explanation for how Washington under this majority leader works today.

But if Democrats take control of the Senate this November, as polls show they might, a universe of opportunities will open up.

Lessons from FDR’s first policy defeat

In 1937, Franklin D. Roosevelt was at the peak of his power. He had just been triumphantly re-elected, and had swollen Democratic majorities in Congress to do his bidding.

But there was one line his party wouldn’t cross. FDR proposed to “pack the Supreme Court” by nominating new Justices to take it above its limit of nine, frustrated as he was that the Court had repeatedly struck down his initiatives.

But the Democratic Party revolted. Americans didn’t like the idea of the Court, which they had almost a feeling of reverence for, being targeted for a hostile takeover by a frustrated executive.

FDR was forced to abandon the plan. But he may have won out in the end.

Justice Owen Roberts, apparently frightened by the president’s proposal, began siding with FDR conspicuously more often in cases.

The court ceased to be the thorn in Roosevelt’s side it had once been, leading the president to tone down his plans for a judicial makeover.

Robert’s reversal led to the humourist Cal Tinney quipping that “a switch in time saves nine.” And it did – until 2021, at least.

Democrats are angry enough at McConnell’s decision to ram a nominee through – and replace the progressive icon Ruth Bader Ginsburg with a far-right Justice – that they are once again floating the idea of court packing.

It’s hard to say if they’ll go through with it.

But there’s a definite rage on the Democratic side that we don’t see every day.

$100 million raised in three days

In the first 24 hours after Ruth Bader Ginsburg’s death, the Democratic fundraising platform ActBlue reported raising $48 million, at one point reaching a clip of about $100,000 per minute.

In the two days since, that’s jumped to more than $100 million.

This is a jaw-dropping sum. I’m old enough to remember when candidate Obama’s $33 million quarterly haul in the summer of 2007 was the first sign he was running a serious campaign.

But now, Joe Biden has $187 million more in cash on hand than Trump – and now ActBlue will be pumping millions of dollars into the campaigns of Democratic congressional candidates around the country.

And it’s not as if the spigot has been turned off. Millions more dollars will pour into ActBlue almost every day until November – with a spike guaranteed on the day Republicans hold their confirmation hearings on Trump’s Supreme Court nominee.

In 2018, Democrats picked up 40 seats in the House of Representatives, the biggest loss for the GOP since the 1974 election where Richard Nixon’s Watergate scandal dragged down the whole GOP, thanks to a “green wave” of ActBlue donations that overwhelmed some Republican lawmakers.

In the aftermath of that midterm election, McConnell instructed his Senate caucus that a solution would have to be found to ActBlue.

Instead, he’s poured gasoline on that fundraising fire.

My guess is that the GOP will get their justice this October – although with a four-vote margin in the Senate and two senators already wavering, you never know.

But if this $100,000/minute fundraising clip is any sign of Democratic enthusiasm for voting, they’ll pay a big price in November.


William Dahl
Managing Editor, Southbank Investment Research

PS Somewhat surprisingly, Biden hasn’t paid any political price for his stated willingness to put the US under a second lockdown “if experts recommend it” – and as you know, Boris Johnson is edging even closer to that nuclear option. As Johnson mulls a two-week “circuit stopper” lockdown, my colleague Nickolai Hubble’s warnings of this threat since July, dismissed as paranoia at the time, now look prophetic. To see his top investment to protect your money from a lockdown even Johnson’s advisers warn will be disastrous, click here.

Category: Market updates

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