How the Supreme Court just affected the election

The Briefing, Vol. III, Issue 19-

To: Our readers
From: David Freddoso

This week:

  • Gay marriage decision
  • Trouble for GOP candidates
  • Confusion over possible Jeff Miller Senate bid

President 2016

Republicans: Last week’s same-sex marriage decision was entirely expected, but it was historic nonetheless. It represents yet another foray by the Supreme Court into the realm of attempting to create social change.

This is the sort of thing that makes conservatives tear their hair out. The court operates under a glaring double-standard. When the Left gets its way at the ballot box, the result stands without question. When the Right does the same, or at least has a chance of victory, the court has a history of setting the democratic process aside altogether, and purportedly settling issues that are indeed political, and what’s more very controversial and hotly debated.

The Roe decision of 1973 and subsequent related cases turned abortion into a sacred cow that the legislative process could no longer touch. This case is similar in that sense, bringing about, as Justice Scalia put it, “social transformation without representation.”

The small consolation here for conservatives is that this case had coherent, well-articulated dissents in which four justices participated. There were four dissents in fact, the concise legal logic of which stood in stark contrast to the court’s mushy majority opinion.

But whatever there is to say about the merits of this case, its political ramifications are more to the point here. There is a 2016 presidential race in full swing, and this decision will affect it dramatically.

Some conservatives and Republicans and others have suggested that this ruling lets the Republican candidates off the hook on the issue. With the decision made and done, they argue, GOP candidates have a huge burden lifted from them. They no longer have to worry about whether a traditional position that has become increasingly unpopular with certain key voting demographics will hurt them.

Ramesh Ponnuru argued persuasively this month that that was not so, and his pessimism is probably well-grounded. This decision is likely to dog Republicans in a way the status quo ante did not.

Think about this in the clear light of day: For many conservative voters, the issue is not settled at all. Many oppose gay marriage, and even more oppose the sort of judicial interventionism that was just used to impose it. They aren’t just going to go away, and of all people, the Republican candidates most certainly cannot ignore them.

Conservative candidates will now be faced with demands to undo what has been done — and that’s harder to promise or do than the mere act of preventing something. For the general electorate, a promise to take something away from someone is more difficult politically. It may not be the enormous downside that social liberals expect, but this will have some kind of downside for any of these candidates, depending on how far they decide to go.

What this ruling does is to throw the primary into mild chaos by introducing a new element. Democratic candidates can simply cheer the Supreme Court’s decision, but Republican candidates who have professed opposition to state-recognized same-sex marriage will have to take a position showing just how much they oppose it. Will they call for a Constitutional change that puts states back in charge of marriage policy — as Scott Walker already has — or will they settle for religious freedom protections, as Jeb Bush and Marco Rubio appear to have done?

Of course, all talk of a constitutional change is futile, at least for now. Even the most hardened opponents of same-sex marriage recognize that the 67 votes aren’t there in the Senate to undo gay marriage (which is how it would be framed). Perhaps support for such an amendment is akin to support for a balanced budget amendment — too unlikely for voters to give much credit to those who advocate it. On the other hand, it is becoming a more courageous stance as public opinion turns more sharply against the traditional understanding of marriage.

In short, the decision offers no relief for Republican politicians who want to be president. To the extent that it matters at all, it’s because it makes their lives harder, not easier.

Democrats: We’ve been hinting for some time that there are many reasons already for Democrats to be jittery about Hillary Clinton. It seems they might be getting there. A new UNH poll shows her with a rather modest 8-point lead over Bernie Sanders in the Granite State, which traditionally holds the first presidential primary. The poll could be a bit of a fluke, or a few points off, but it highlights how quickly Clinton’s supposedly inevitability could collapse during primary season. This is is not the sort of number an inevitable candidate posts.

Bobby Jindal: Well, someone obviously picked the wrong week to announce for CIB010615-Jindalpresident. But frankly, the fact that he got lost in events is the least of Jindal’s problems. He’s in a strange position. Most conservatives would be perfectly satisfied with Jindal as the nominee, but they also wouldn’t walk across the street to vote for him in a primary. He checks the right boxes and he is an incredibly smart man, but he’s also immensely unpopular right now in his home state. The governorship is highly likely to go to his nemesis, Sen. David Vitter, R, in this fall’s election, and for more than a year already he has made his desire to be president so plain that it’s a bit jarring.

At the moment, it does not seem like there’s a path to the White House for Jindal — not even one that involves a meteor strike. But things change, and Jindal could still become a contender if one or more of the current frontrunners falters or drops out.

Senate 2016

FloridaRoll Call reported last week that Rep. Jeff Miller, R-Fla., is entering the open-seat Senate race and would make an announcement this week. But then Miller denied that this is the case. The conservative north Florida congressman is still considering a bid, though, and with his Veterans Affairs chairmanship term-limited, his incentive to stay in the House is diminished to some extent. Meanwhile, amid the VA scandal, Miller has succeeded in raising his own profile by handling the investigation well — and mercilessly, from the perspective of culpable bureaucrats.

Based on the Heritage Action scorecard, Miller is the most conservative chairman of any committee in the House, and by quite a long way. In theory, the most likely effect he would have in the race is to split the conservative and northern Florida vote with Rep. Ron DeSantis, R, against the establishment choice, Lt. Gov. Carlos Lopez-Cantera, R, whose base of support is in Miami. Lopez-Cantera will be making his announcement July 15.