How bad will it get if Trump wins a second term? Let me count the ways

In a second term, conservatives can lock down the Supreme Court for decades to come — and that would wreck America

Published September 22, 2020 7:00AM (EDT)

Joe Biden, Donald Trump, Stephen Breyer and Clarence Thomas (Photo illustration by Salon/Getty Images)
Joe Biden, Donald Trump, Stephen Breyer and Clarence Thomas (Photo illustration by Salon/Getty Images)

It's been 160 years, almost to the day, since the last time American voters faced an election with consequences as grievous as this one. The 2020 contest is a referendum on Donald Trump's fascist idiocracy and the rise of a tyrannical Putin-style kleptocracy. Here. In our time. This harrowing assessment includes the rise of an ideological Stone Age for the Supreme Court and, with it, the reversal of myriad advances in human rights and social programs, including the elimination of health insurance for millions of Americans and the dissolution of more than 500,000 marriages.

The too-soon death of Justice Ruth Bader Ginsberg has torn an opening in the fabric of the court that millions of socially Paleolithic conservatives have been waiting for: They now see the real potential for a 6-3 advantage.

Had around 77,000 votes in Michigan, Pennsylvania and Wisconsin gone the other way back in 2016, President Hillary Clinton would likely have secured a 6-3 liberal leaning court, depending of course on control of the Senate. Sure, there are all kinds of "what ifs" in that scenario, but generally speaking, a Democratic president would have been in place to nominate as many as three new justices, and none of them would've been named Brett Kavanaugh or Neil Gorsuch.

Clinton was denied that opportunity for a variety of electoral reasons, among them the archaic turnkey known as the Electoral College, along with third-party votes in the three aforementioned swing states. Clinton's defeat meant the oldest sitting justice on the bench, who happened to be liberal, would be forced to wait at least another four years to retire — four years fighting an endless hellfire of illnesses and injuries. Ginsburg did everything she could do to endure, but her body, hobbled by pancreatic cancer among other infirmities, had other plans.

So now we're looking at the possibility — let's make that a near-certainty — that Donald Trump will nominate a third justice to the Supreme Court. Donald Trump, the tyrant who ordered federal police to fire upon peaceful protesters in Lafayette Park, not to mention at Ali Velshi, an NBC News reporter in Minneapolis, who was shot with a rubber bullet; the tyrant who has confessed to downplaying the deadliest pandemic in 100 years; the fascist tyrant who believes U.S. soldiers are "suckers" and "losers"; the tyrant who was impeached for trying to cheat in the election and who's currently trying to sabotage the Postal Service to cheat again; the tyrant who said, on tape no less, that he gets along better with other tyrants than with U.S. allies; and the tyrant who's actively maneuvering to kill the Affordable Care Act and, with it, numerous consumer protections and health insurance plans for 20 million Americans.

He gets three nominations now. 

Turns out, elections matter. Voting matters.

The stakes for the 2020 election now involve whether Trump and Mitch McConnell will be able to successfully confirm a replacement for Ginsburg. If Trump loses and loses handily, it's unlikely he'll have the votes from his party in the Senate to confirm his nominee before the next Congress is sworn in on Jan. 3, 2021. If Trump wins, however, swing votes in the Republican caucus, like Lisa Murkowski of Alaska, Susan Collins of Maine and Mitt Romney of Utah could swing to Trump's nominee. It's also possible the congressional Democrats will engage in strategic obstructionism to run out the clock.

These are all possible avenues for snatching Ginsburg's seat from Trump's stubby fingers. But her seat isn't the only Supreme Court vacancy on the ballot this year.

Justice Stephen Breyer, one of three remaining liberals on the court, turned 82 last month. He's nearly five years older than Joe Biden and eight years older than Trump. So Breyer is to 2020 what Ginsburg was to 2016. (Ginsburg was 83 at the time of Trump's shock victory.)

So, not only does this election matter in terms of saving Ginsburg's seat — it may also mean saving Breyer's seat, too. 

Overwhelmed yet? Just wait, there's more. 

If the unthinkable happens and Trump manages to win a second term, while the balance in the Senate ends up being, let's say, 50-50, handing every contentious and divisive matter to Mike Pence for tiebreakers, the consequences for the Supreme Court will go from horrendous to apocalyptic. 

It's reasonable, if admittedly morbid, to assume that Breyer may retire or die within the next four-plus years. If that happens, Trump would get his fourth SCOTUS nominee, transforming a 6-3 court (assuming Mitch McConnell can jam through Trump's nominee for Ginsburg's seat) to a blindingly lopsided 7-2 court. 

Oh, and Clarence Thomas and Sam Alito, who are both in their 70s, might be persuaded to retire during a second Trump term, potentially locking up those seats for conservatives 30 years or more into the future.

A hypothetical court with seven right-wing justices could strike down everything from Roe v. Wade to Brown v. Board of Education. Obergefell v. Hodges, the decision that legalized same-sex marriage, might be the first to fall, given its comparative modernity. Following the elimination of these landmark decisions (and many others), fetal personhood laws could go into full effect in red states, penalizing abortions as capital crimes; same-sex marriages in red states, meanwhile, would be dissolved; and a return to pre-Civil Rights Act segregation would begin to spread from one red-state school district to another. At-risk Americans living in blue states might be shielded from some of this, at least for a while, until the inevitable: a 7-2 court might ultimately affirm a slate of draconian federal laws blasted through Congress (depending on which party controls the Senate), including federal personhood laws and bans on everything related to LGBTQ rights. Adding insult to injury, Trump would skate through his second term with a court that would stand ready to strike down any attempt to hold him accountable for his crimes.

Progressives who choose to vote for third party candidates this year need to be aware that not only will an ossified conservative court vaporize the ACA, returning our health insurance system to its abusive and horrendous pre-2010 status, but it would steamroll anything resembling Medicare for All. No version of the Green New Deal, by the way, would survive legal challenges either. And since we're talking about a relatively "young" Supreme Court, there would be no realistic chance of enacting similar initiatives for decades to come. As Abraham Lincoln once said, a compass that points us to true north doesn't take into consideration all the swamps and deserts to be avoided along the way.

For these reasons and more, it's not only important to vote, but it's important to vote for a straight Democratic ticket — from the Biden-Harris ticket right on down the line. When I see pundits and celebrities on television or social media urging people to vote, I can't help but think they're only getting it half right. You have to vote, sure. But if you're anywhere in the vicinity of normalcy and small-L liberalism, your vote has to be for Democrats. Votes for third parties are nothing more than votes against the only viable, relatively sane party in a binary political system. Not only do we have to vote against all Republicans to stop the hemorrhaging, we have to vote in overwhelming numbers, in order to give the winning candidates enough political capital to enact a roster of mandatory reforms to the system, such that nothing like this ever happens again.

This isn't a game. This isn't a time for contrarian protest votes. This is real life and we're on the verge of a total collapse should this election go sideways. Everything we cherish as reality-based, fact-based Americans is on the ballot this year. All of it. Civil rights, voting rights, body sovereignty, the freedom to protest against the president, the freedom to marry who we love, our health and well-being — it's all on the ballot this year. Choose wisely.

By Bob Cesca

Bob Cesca is a regular contributor to Salon. He's also the host of "The Bob Cesca Show" podcast, and a weekly guest on both the "Stephanie Miller Show" and "Tell Me Everything with John Fugelsang." Follow him on Facebook and Twitter. Contribute through LaterPay to support Bob's Salon articles -- all money donated goes directly to the writer.