10 Years After Obergefell, Hillary Clinton Is Still Right About The Supreme Court

Not an 'I told you so.' More a 'let's do better next time.'

June 26 was the 10th anniversary of Obergefell v. Hodges, the Supreme Court decision that legalized same sex marriage nationwide.

“They ask for equal dignity in the eyes of the law,” then-Supreme Court Justice Anthony Kennedy famously declared in the majority opinion. “The Constitution grants them that right.”

Obviously, the anniversary celebrations this year were somewhat subdued. The current MAGA Supreme Court has since overturned Roe v. Wade, ruled against the inherent dignity of trans people, and mostly shrugged off the basic idea that even Donald Trump must obey the law. Samuel Alito and Clarence Thomas in particular are anxious to “reconsider” the Obergefell decision. Noted bigot Kim Davis, who refused to issue marriage licenses to same-sex couples, is hoping for a Supreme Court rematch. She might yet get her hateful wish.

This is no longer a Supreme Court that expands rights through the 14th Amendment. It contracts them under the complex legal theory of “shut up, that’s why.”

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Republican Sen. Ted Cruz claimed the marriage equality ruling was one of the “darkest periods” for the Supreme Court — deliberately ignoring Dred Scott and Plessy v. Ferguson. Then Louisiana Gov. Bobby Jindal said the “Supreme Court is completely out of control, making laws on their own, and has become a public opinion poll instead of a judicial body.” He added, “If we want to save some money, let’s just get rid of the court,” which is arguably what happened over the next five years. The Supreme Court that had, with a few Bush v. Gore-shaped exceptions, defended personal freedom and democracy no longer exists, and its replacement instead rubber stamps tyranny and provides a legal polish on oppression.

Liberals might have dismissed or openly mocked the hysterical far-right rantings post-Obergefell and savored our momentary triumph, but what’s important to remember is that Republicans meant what they said.

Justice Antonin Scalia — an obvious “no” vote on marriage equality — died eight months later. This could’ve been a major blow to the right, as Barack Obama was set to fill the vacancy. However, Mitch McConnell simply ignored Obama’s constitutional powers as president. He later gloated, perhaps at an annual Legion of Doom retreat, “One of my proudest moments was when I told Obama, ‘You will not fill this Supreme Court vacancy.’”

After Obama nominated Merrick Garland, McConnell spun his unprecedented action as “giving the people a voice,” as if the people hadn’t re-elected Obama in 2012.

“The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the Court’s direction,” McConnell said on the Senate floor. “It is a President’s constitutional right to nominate a Supreme Court justice and it is the Senate’s constitutional right to act as a check on a President and withhold its consent … The American people may well elect a President who decides to nominate Judge Garland for Senate consideration. The next President may also nominate someone very different. Either way, our view is this: Give the people a voice in the filling of this vacancy.”

McConnell would prove that his words were a Whitman’s sampler of lies when Republicans later confirmed Amy Coney Barrett while Americans were literally voting Donald Trump out of office. However, at the time, McConnell had made a tremendous gamble: Garland was a consensus pick, someone Republicans had previously praised. If Hillary Clinton won the election, the four seats Democrats needed to flip the Senate would’ve easily been within reach, and she could’ve nominated someone much younger and easily more liberal than Garland. Justice Ruth Bader Ginsburg seemed very open to retiring with Clinton in the White House. She told Mark Sherman at the Associated Press in July 2016, “It’s likely that the next president, whoever she will be, will have a few appointments to make.” Right-leaning Justice Kennedy might not have retired in 2018 but unlike his replacement, Brett Kavanaugh, he was a reliable liberal swing vote on abortion and civil rights.

Stephen Breyer’s Supreme Court Just Like That ‘Friends’ Episode Where They Overturned Roe V. Wade

Of course, McConnell’s gamble paid off: Trump-skeptical conservatives held their noses and voted for him because of the Supreme Court, and Clinton-skeptical progressives were complete idiots. They took Clinton’s victory for granted, even though McConnell clearly didn’t consider it a done deal. If someone bets their house on a hand of poker, they are either very stupid or you should check the cards. McConnell is many things found in children’s horror stories, but he’s not stupid.

Clinton delivered a speech in Wisconsin at the end of March 2016 reminding voters of the election’s elevated stakes. Only 250 people were present, and the media mostly ignored her remarks. (Watch below — yes, of all of it.)

“The Court shapes virtually every aspect of life in the United States — from whether you can marry the person you love, to whether you can get healthcare, to whether your classmates can carry guns around this campus,” Clinton said. “If we’re serious about fighting for progressive causes, we need to focus on the Court: who sits on it, how we choose them, and how much we let politics — partisan politics — dominate that process.”

Clinton wasn’t the first Democratic presidential nominee whose warnings about the Supreme Court were ignored. When Al Gore raised the threat of George W. Bush’s Supreme Court nominees, Michael Moore said Gore had “no integrity” on the issue because he’d voted to confirm Scalia (an admittedly bad vote but it doesn’t change the fact that Gore was right). There were no vacancies during Bush’s first term, and in 2004, John Kerry advised that we not push our luck. A Bush majority could mean “restrictions on affirmative action, hate crimes, abortion rights, the right to privacy and voting rights.” Bush would nominate both Samuel Alito and John Roberts in his second term.

Nonetheless, stubborn anti-Clinton progressive dismissed her warnings as the usual Democratic scare tactics. They refused to recognize the power of the Court, especially under far-right control. As Clinton warned, it doesn’t matter if a perfect progressive president can magically pass every item on the progressive wish list. A “conservative” Supreme Court will just overturn them — it had literally almost happened with the Affordable Care Act! — while advancing a radical right-wing agenda that’s otherwise unpopular.

The 2016 election was a crushing defeat for liberal democracy, and the impact will be felt for generations. I’m not so naive as to think Clinton would’ve presided over a liberal utopia but she would’ve held off a right-wing dystopia. Yes, Republicans probably would’ve impeached Clinton a few times before she lost re-election because she took the covid pandemic seriously. However, we can guarantee that even a single Clinton term would’ve kept Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett off the bench. Even if some Republican horror show beat her in 2020, we’d still have a 6-3 center-left Supreme Court with Alito and Thomas writing grouchy dissents for rulings that preserved our basic human rights.

We had every reason to celebrate the Obergefell decision. We should’ve delighted at the sight of an inclusive White House beaming with rainbow colors that day. Then, when the high was over, we should’ve gotten back to work — or, you know, just done the bare-ass minimum — because Republicans were never going to surrender. Mitch McConnell fired his shot, and some silly people threw theirs away. Unfortunately, we all took the bullet.