Five countries to watch as the European right made new gains in 2022.
2022 was a good year for the far right in Europe.
Although Marine Le Pen, the leader of France’s radical right, did not win the presidential election, she came a lot closer this time, while her party won a record number of seats in the parliamentary elections. In Sweden, the once marginal and marginalized Sweden Democrats became the biggest right-wing party and a crucial support party of the new right-wing coalition. In Italy, Giorgia Meloni became the first female prime minister of Italy and the first far-right prime minister in postwar Western Europe. And the arrest of more than two dozen people planning a coup in Germany is an important reminder that the far-right threat to democracy does not only come from political parties.
Why has the European far right been so successful? And how worried should we be about its threat to liberal democracy in Europe?
Ever since Adolf Hitler’s rise to power in Weimar Germany in the 1930s, amid the Great Depression, it has been common to link political and economic crises to the rise of the far right. But the contemporary far right in Europe is neither a product of crises nor of the success of former President Donald Trump in the US.
In fact, far-right parties have been slowly but steadily increasing their electoral support and political power in Europe since the early 1980s. Over that time, they have moved from the political margins into the political mainstream. As a consequence, far-right parties currently constitute the biggest threat to liberal democracy in Europe.
Five European countries in particular (but not exclusively) deserve attention on this front. Going from the most to the least acute level of threat, the world should keep an eye on Hungary, Poland, Italy, Sweden, and France. In all these countries, far-right parties are electorally successful and politically powerful, though their ability to weaken liberal democracy varies.
If liberal democracy is to defend itself, it’s imperative that we examine why the far right has become so successful in the West. What right-wing appeals have worked on electorates? Which parties and personalities loom especially large in the coming years? And why is all this happening now?
Why has the far right been so successful recently?
Since the end of the Second World War, far-right parties have been contesting elections across Western Europe. But it wasn’t until this century that they began to move from the fringes to the mainstream.
The emergence of the European political far right in the postwar era can be thought of in four waves.
In the first wave, roughly 1945-55, these parties were neo-fascist and electorally insignificant — with the notable exception of the Italian Social Movement (MSI), the predecessor of Brothers of Italy (FdI), the party of Italian Prime Minister Giorgia Meloni.
The second wave of right-wing populism, 1955-80, consisted of a heterogeneous group of so-called “flash parties,” which scored relatively big electoral results out of nowhere and then disappeared into political oblivion one or two elections later. The best example is the Union and French Fraternity (UFF), which gained almost 13 percent of the vote and 52 seats in the 1956 French legislative election, only to again disappear as quickly as they had appeared.
It was only in the third wave, 1980-2000, that far-right parties started to break into national parliaments in various European countries, such as the Austrian Freedom Party (FPÖ) and the misleadingly named Center Party (CP) in the Netherlands. These populist radical right parties shared a core ideology of nativism, authoritarianism, and populism. Although not strictly single-issue parties, they mostly profited from a growing political dissatisfaction that centered in particular on immigration.
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That paved the way for the fourth wave at the beginning of the century, in which far-right parties moved from the political margins into the political mainstream and increased their electoral support, from an average of just 1 percent of the vote in EU member states in the 1980s to close to 10 percent in the 2010s. (It’s worth noting that the support of individual parties varies massively; recently, for example, from less than 1 percent for parties in Ireland to over 50 percent for Fidesz in Hungary — the latter achieved in free but unfair elections.)
Most of the relevant parties in this fourth wave are part of the same populist radical right subgroup, focusing primarily on issues like crime, corruption, and immigration. Unlike the extreme right, which consists of a broad variety of small, neo-fascist parties — parties that, in terms of ideology and symbols, hark back to the fascist movements of the early 20th century — the radical right supports democracy per se. That is, they support popular sovereignty and majority rule, while opposing key institutions and values of liberal democracy, such as an independent judiciary and media, minority rights, pluralism, and the separation of powers.
Decades of mainstreaming of radical right frames and policies have led to further radicalization of some these parties, which has blurred the boundaries between the radical and extreme right; for example, the Alternative for Germany (AfD) and the Forum for Democracy (FvD) in the Netherlands. Both parties combine nativist opposition to immigration and populist rejection of the establishment with more or less open historical revisionism — e.g., Alexander Gauland, the former AfD co-chair, said that “Hitler and the Nazis are just bird shit in more than 1,000 years of successful German history” — and thinly veiled support for political violence. One FvD MP threatened a mainstream politician with “tribunals” over Covid-19 policies.
Although far-right parties existed in many Western European countries in the decades after World War II, they only started to challenge the political mainstream in the 1980s. The economic and social upheavals of the 1960s had set in motion various structural processes, such as deindustrialization and secularization, that not just changed the electorate but also eroded longstanding ties between voter groups and political parties.
This dealignment, as well as changing priorities and values, created opportunities for parties that focused more on socio-cultural (or so-called “identity”) than socio-economic issues. As the main traditional parties had converged on socio-economic policies and took relatively moderate or weak positions on socio-cultural issues, far-right parties saw an opportunity. Their main issues were all related to opposition to integration: of countries (European integration), of markets (neoliberalism), and of people (multiculturalism).
In the wake of the terrorist attacks of 9/11, far-right parties grew not only in electoral support but also in political relevance. On many socio-cultural issues, the far right constitutes the main electoral and ideological challenge to the status quo, which has been severely weakened by the unprecedented string of crises in the still-young century — the terrorism attacks of 9/11, the Great Recession, the refugee crisis of the mid-2010s, the Covid-19 pandemic, and now the Russian re-invasion of Ukraine.
In other words, what we’ve seen these last few years is the cresting of a wave that’s been building for decades.
Five countries to watch
The right-wing incursion into the European political mainstream isn’t a uniform phenomenon across the continent. Some countries have withstood the emergence of far-right parties; others have been engulfed. But five countries provide a particular insight into the far-right threat to liberal democracy on the wider continent.
Hungary
Fidesz leader Viktor Orbán was initially among the most unlikely East European politicians to become a threat to liberal democracy. After all, Fidesz was founded as a libertarian, pro-Western party in 1988, and Orbán was a darling of the Western political establishment in the early 1990s.
Today, he is the hero of the European and US far right alike, hailed as the protector of Christianity, European culture, and the traditional family. Orbán’s story is in many ways a microcosm of a two-way dynamic — the radicalization of the mainstream right, as well as the mainstreaming of the far right — that is threatening many European countries today.
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After disappointing elections in 1990 and 1994, Orbán transformed Fidesz into a conservative party, winning the 1998 elections. Although his first coalition government was not especially alarming, his authoritarianism and nationalism were already on display in those early years. His response to his loss of power in 2002, when he declared that “the nation cannot be in opposition,” and his support for violent anti-government protests in 2006, should have been clear red flags, but were mostly ignored.
Fidesz used the time in opposition to build so-called “civic circles” and non-government organizations (including media outlets), which functioned as a state within the state. After coming back to power in 2010, Orbán used this infrastructure, and the party’s constitutional majority, to quickly implement a well-designed transformation of the political system, including a new constitution, a replacement of most key state personnel, and myriad new, Fidesz-controlled, semi-state institutions, which now control and own almost all Hungarian media outlets and many universities.
Fidesz had returned to power with a fairly vague pro-change message and initially implemented a relatively mainstream, if openly nationalist, conservative agenda. Although the government claimed to support a free market, it used state funds to buy up foreign-owned companies and industries and build a “national capitalist class,” which is deeply loyal to Fidesz and Orbán. At the same time, the government passed socially conservative policies in ostensible defense of the nationalist trifecta of church, family, and nation.
During the refugee crisis of 2015-16, Orbán shifted to a more aggressive and openly nativist agenda. Not only did his government build a high-tech border fence to keep immigrants — especially Muslim immigrants — out of the country, it also introduced a variety of socio-economic “pro-family” policies, like tax breaks for families, in a bid to reverse Hungary’s notoriously low birth rates and prevent the country from becoming dependent upon non-European immigrants.
Although Hungary is no longer a liberal democracy — in September, the European Parliament declared the country an “electoral autocracy” — and elections are free but unfair, Orbán and Fidesz are popular. In particular, his anti-immigration and “pro-family” policies have broad support, as do government investments in rural areas. However, he is also helped by a hopelessly divided opposition and complete control of the media, which provide a distorted view of the international and national opposition, while staying quiet on the massive corruption of the Orbàn regime.
Poland
The story of Poland is similar to that of Hungary, but less pronounced — so far. The current ruling party, Law and Justice (PiS), has its roots in anti-communist opposition and moved from the center to the far right over two decades.
Its first coalition government (2005-07) did raise some alarms, although mostly because of its coalition partners, the agrarian populist Samoobrona and, particularly, the radical right League of Polish Families (LPR). Both parties were openly nationalist and populist, and even faced accusations of antisemitism.
When PiS returned to power in 2015, it promised to implement “the Budapest model” in Warsaw, a nod to Orban’s platform.
Like Fidesz in Hungary, PiS has turned the state media into an instrument for party propaganda and attacked the independent judiciary. It has also combined a socio-economic agenda that includes generous subsidies for larger families and rural communities, but it has not (yet) tried to create a Fidesz-style “national capitalist class.” Culturally, PiS staunchly defends the so-called “traditional family” and opposes LGBTQ rights, often in close collaboration with the Catholic Church.
In terms of foreign policy, the differences between the two parties are much bigger. PiS is more fundamentally Euroskeptic, because of a deep-seated anti-German attitude, and is more staunchly pro-US and anti-Russian. And PiS leader Jarosław Kaczyński is almost the opposite of Viktor Orbán, being more a behind-the-scenes power broker and showing little interest in becoming a major European player.
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Partly because PiS is the leading party of the European Conservatives and Reformists (ECR), the Euroskeptic group founded by the British Conservative Party, its crude attacks on liberal democracy have faced significantly more backlash from the EU. The party also faces much stronger opposition from both civil society and political parties in Poland, at least compared to Fidesz in Hungary. This became particularly visible in 2020, when the government further tightened its abortion ban, already the second strictest in the EU (after Malta), and over 100,000 Polish women flooded the streets of Warsaw in protest.
Polish liberal democracy has been weakened by seven years of PiS rule, but recent events suggest it is still alive and kicking back.
Italy
Italy has had consistent far-right parliamentary representation in the postwar era, but it was Silvio Berlusconi — prime minister in 1994, 2001-06, and 2008-11 — who moved the far right out of the margins, creating a center-right bloc with the post-fascists of the National Alliance (AN) and the regional populists of the Northern League (LN) in 1994.
For 20 years, his Forza Italia (FI) dominated that bloc, a coalition that was defined more by Berlusconi’s personal interests, as well as a vocal critique of the left (including the “red robes,” judges overseeing various corruption cases against the prime minister), than by any specific ideological or policy platform. But in 2018 Matteo Salvini’s radicalized Lega became the biggest right-wing party — only to lose that position to Giorgia Meloni’s Brothers of Italy (FdI) in 2022.
Meloni is both the first female prime minister of Italy and the first far-right prime minister of a Western European country in the postwar era. But her power base is much weaker than her allies in Hungary and Poland. There are more profound ideological differences within Italy’s coalition. For instance, while the League originated as a regionalist party for the North, at times even calling for independence from Italy, FdI supports a strongly unitary Italian state. And where FdI and the League are both strongly Euroskeptic, Berlusconi has presented himself more recently as one of the strongest EU supporters within the country.
Competing egos and mutual distrust threaten the coalition even more. Neither Berlusconi nor Salvini will accept a secondary role, let alone to a woman, and will not support a power grab by Meloni. For instance, during the coalition negotiations Berlusconi accused Meloni of being “bossy” (a highly gendered accusation), while Meloni has accused Salvini of being “more polemical” with her than with his opponents.
Italy’s judiciary also has a long history of fighting political interference from the right, most notably Berlusconi. So, while the Italian far right is in power and worth keeping an eye on, it is doubtful it can do similar damage to the institutions and values of liberal democracy as its ideological brethren to the East.
Sweden
For a long time, its neo-Nazi origins and low electoral support made it easy for Sweden’s traditional parties to both exclude and ignore the Sweden Democrats (SD).
This started to change after 2014, when the party gained the third most seats in parliamentary elections. Four years later, the SD had become so strong that neither the center-left nor the center-right bloc could form a coalition government by itself, creating a political impasse, and a combination of weak governments. Since then, favorite SD issues like crime and immigration, combined in the far-right frame of “immigrant crime,” have become even more mainstreamed, and the traditional right has opened the door to official collaboration.
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In October, a right-wing minority government was formed, which depends formally on the parliamentary support of the SD, whose influence can be seen in the lengthy coalition agreement. However, all power still rests in the hands of formally liberal democratic politicians, even if these politicians have radicalized sharply to the right in recent years. Consequently, the far-right threat comes primarily from traditional right-wing parties, for the moment.
Still, it is doubtful that Sweden’s right-wing parties, both traditional and radical, will go much beyond more authoritarian and nativist politics, as all seem invested and supportive of the political system.
France
The National Front (FN) is the prototype of the modern populist radical right party.
For decades, the party, and its charismatic leader Jean-Marie Le Pen, dominated the European far right. As far as there was regional collaboration between far-right parties, it was under the initiative and leadership of Le Pen.
The FN had little to no parliamentary representation, but its political influence was obvious: already in the 1990s, French politicians of all traditional parties copied its issues, frames, and positions on immigration. From the left to the right, parties started to oppose what they called “mass immigration” and framed migrants (particularly Muslim) as a threat to the French nation. Echoing long-standing FN propaganda, right-wing president Nikolas Sarkozy even declared multiculturalism in France a “failure” in 2011.
This drift has continued under Marine Le Pen, who replaced her father in 2011, and renamed the party as National Rally (RN) in 2018. Although remaining loyal to the party’s ideological core, she launched a successful “de-demonization” campaign, which helped to further mainstream and normalize her ideas and party.
Even President Emmanuel Macron, elected after an anti-Le Pen campaign in 2017, has since adopted important parts of her propaganda, including in his campaign against Islamo-gauchisme or Islamo-leftism, a moniker given to the conspiracy theory that French Islamists and radical leftists work together to undermine the institutions and values of the republic. So, although Le Pen and the RN are still excluded from governing by a cordon sanitaire, and can therefore not directly challenge or change the main institutions of French liberal democracy, they have been able to partly redefine what “liberty, equality, fraternity,” as well as laicité (separation of state and church), mean in France.
How worried should we be?
The electoral far right constitutes a significant threat to liberal democracy in Europe, but the threat varies significantly across the continent. No doubt, the biggest threat comes when one far-right party holds a constitutional majority, as in Hungary, where democracy has been, for all intents and purposes, destroyed.
When the far right lacks a constitutional majority, it can still do a lot of damage, but faces larger legal and political hurdles, as in Poland. When it is in government, but internally divided, as in Italy, mutual distrust will likely prevent most ostensive damage, but ideology and intimidation can still cause less visible harms.
In most European countries, however, the main impact is indirect, through the co-optation of the far-right agenda or the collaboration with far-right parties — by, mostly but not exclusively, mainstream right-wing parties — as is happening in France and Sweden, for example. What makes this process particularly problematic is that it is often not perceived as far-right or threatening; within the political establishment, many might deny or minimize cries of authoritarianism or nativism among insiders.
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Christophe Ena/AP
While it is important to not exaggerate the threat — doing so only increases its power — we should recognize that most far-right parties have only relatively recently become part of the mainstream political process. They often lack the experience and skills to fundamentally change the system and many fail in their first attempt in power. But they learn from previous mistakes, and decades of mainstreaming and normalization helps them gain more experienced and skilled people.
Similarly, far-right parties are collaborating more actively and effectively cross-nationally and cross-regionally (including with the US), learning from each other, protecting each other, and increasing their capacity to govern.
In other words, the far-right threat to European liberal democracy is real, but there is also still time to fight off the worst consequences — outside of Hungary, that is.
Cas Mudde is the Stanley Wade Shelton UGAF professor of international affairs and a distinguished research professor at the University of Georgia, as well as a professor at the Center for Research on Extremism (C-REX) of the University of Oslo.
The US Senate is a fundamentally broken institution. Democratic judges need to account for that in their retirement decisions.
We have now lived with the consequences of Ruth Bader Ginsburg’s late-life arrogance for more than two years.
In 2014, President Barack Obama was in office and Democrats controlled the Senate, empowering them to confirm a new justice if Justice Ginsburg had left the Supreme Court. Ginsburg was a two-time cancer survivor in her 80s, the oldest member of a 5-4 Court where the right to an abortion — and perhaps even the right to vote in reasonably fair elections — teetered on a knife’s edge.
When she died in the final months of the Trump presidency, Ginsburg told her granddaughters her last desire: “My most fervent wish is that I will not be replaced until a new president is installed.” It amounted to nothing. Ruth Bader Ginsburg’s seat on the Supreme Court, a seat that until recently belonged to the greatest women’s rights lawyer in American history, is now held by her ideological opposite.
Now, eight years later, the question arises: Should Justices Sonia Sotomayor and Elena Kagan, 68 and 62, respectively, do what Ginsburg would not?
Both justices are much younger than Ginsburg was in 2014. There are no reports that either is in ill health (although Sotomayor has diabetes, she’s managed that condition nearly her entire life). Realistically, both justices could probably look forward to a decade or more of judicial service if they desire it. But even a mighty Supreme Court justice cannot overcome the merciless math facing Democrats in a malapportioned Senate that effectively gives extra representation to Republicans in small states.
Barring extraordinary events, Democrats will control the White House and the Senate for the next two years. They are unlikely to control it for longer than that. The 2024 Senate map is so brutal for Democrats that they would likely need to win a landslide in the national popular vote just to break even. Unless they stanch the damage then, some forecasts suggest that Democrats won’t have a realistic shot at a Senate majority until 2030 or 2032. And even those forecasts may be too optimistic for Democrats.
If Sotomayor and Kagan do not retire within the next two years, in other words, they could doom the entire country to live under a 7–2 or even an 8–1 Court controlled by an increasingly radicalized Republican Party’s appointees.
Senate Republicans have made it perfectly clear that they view Supreme Court seats as a political prize that goes to the party that controls both the White House and the Senate. In 2016, when Justice Antonin Scalia’s death created a Supreme Court vacancy during Obama’s final year in office, Republicans invented a new rule claiming that a vacancy that opens in an election year should be filled by the “next president.” They abandoned that made-up rule as soon as it was inconvenient for them, racing to confirm Trump nominee Amy Coney Barrett the week before voters cast Trump out of office.
Meanwhile, the Senate is malapportioned to give extra representation to residents of smaller states dominated by Republicans. In the current, 50-50 Senate, Democratic senators represent nearly 42 million more people than their Republican counterparts. Democrats have a 29-21 seat majority in the 25 most populous states — states that contain nearly 84 percent of the 50 states’ population — while Republicans have an identical 29-21 seat majority in the remaining states.
Yet there are good reasons for Democrats to worry about a future where Republican justices get to serve for decades, while their Democratic counterparts have to rotate out every time it is possible to replace them with another Democrat. Long-serving justices can develop cult followings that expand their legal and political influence far beyond their one vote, much like Ginsburg did in life, and as Justice Clarence Thomas has done among the legal right. And justices who serve for a very long time also develop relationships with their colleagues that they can sometimes use to encourage those colleagues to moderate.
If only Republican justices can benefit from longevity, the Court’s right flank will gain yet another structural advantage over its left.
But, at some point, the advantages of longevity and experience must yield not just to the Senate’s unforgiving math, but to the mathematics of the Court itself. In the Supreme Court, the only number that truly matters is five. It takes five justices to make a majority that can do literally anything they want to US law.
And if Republican appointees capture seven or eight seats on the Supreme Court, it will become effortless for the GOP to find five votes for truly outlandish legal outcomes.
Sotomayor and Kagan will have to look at these risks and counter-risks and make their own calculations — but for the sake of the nation they serve, they cannot simply ignore the very realistic chance that the next two years may give them their only remaining opportunity to leave their seat to someone who shares their liberal democratic values.
Each additional Republican-controlled seat on the Supreme Court endangers more fundamental rights
It is difficult to predict which issues will come before the Court in the coming years, in part because the Court tends to hear more cases brought by conservative activists as its membership moves rightward. In a world where Sotomayor or Kagan is replaced by a Republican president, the Court could hear even more cases attacking the right to vote. It could impose increasingly heavy shackles on Democratic administrations. And it may even strip away more constitutional rights, as it already did with the right to an abortion.
The size of the GOP majority on the Court matters because not every Republican-appointed justice is like Samuel Alito, an almost unrelenting partisan who will reliably advocate for the GOP’s preferred outcome even when he has to make weak legal arguments in order to do so. Most justices do approach the law in ways that occasionally disappoint activists within their own political party, even if they don’t do so very often.
Indeed, the divide within the Court’s GOP-appointed majority was on full display in what may be the most high-profile case of the past half-century: Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court’s decision eliminating the constitutional right to an abortion. That decision produced two competing concurring opinions, both of which point to radically different futures for Americans’ personal and sexual autonomy.
Justice Thomas, for his part, labeled decisions protecting the right to contraception, the right to same-sex marriage, and the right of consenting adults to engage in sexual activity as “demonstrably erroneous.” And he claimed that his Court “should reconsider” whether it should continue to protect these rights.
Justice Brett Kavanaugh wrote a separate opinion where he seemed to disclaim any interest in Thomas’s project. Pointing to many of the same cases that Thomas threatened to toss out, Kavanaugh wrote that “overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”
In part because no other justice joined either Thomas’s or Kavanaugh’s Dobbs concurrence, it is difficult to pin down where every member of the Court falls between them, but at least some of the Court’s Republican appointees have signaled that they share at least some of Thomas’s desire to tear away existing rights.
Alito’s dissent in Obergefell v. Hodges (2015), the marriage equality decision, tracks the reasoning of his majority opinion in Dobbs so closely that it’s hard to imagine that he would not vote to overrule Obergefell if given the chance. Similarly, Justice Neil Gorsuch dissented from the Court’s decision in Pavan v. Smith (2017), which rejected an attempt to water down Obergefell’s holding that same-sex couples are entitled to marry “on the same terms and conditions as opposite-sex couples.”
Barrett, meanwhile, has largely played her cards close to her chest since joining the Court. But, as a law professor, she signed a 2015 letter to Catholic bishops endorsing the church’s anti-LGBTQ position on “marriage and family founded on the indissoluble commitment of a man and a woman.”
Realistically, in other words, there are almost certainly at least two votes — and potentially as many as four votes — on the current Court to overrule Obergefell. That means that the constitutional right to marry whoever you choose could be in danger if Republicans gain just one more seat on the Court.
Even more troublingly, the Supreme Court has spent the past several years concentrating power within itself. It invented a legal doctrine known as “major questions,” for example, which is mentioned nowhere in the Constitution or in any statute, and which in effect enables the Court to veto any federal regulation that five justices dislike. That means that a Court with five justices from the GOP’s far right wing could tear through the Code of Federal Regulation, even if relatively restrained justices like Kavanaugh or Barrett vote to keep it mostly intact.
Similarly, at December’s oral arguments in Moore v. Harper, a majority of the Court seemed likely to give itself the power to overrule a state supreme court’s interpretation of the state’s own election law, at least in “outrageous” cases when five justices believe that the state mangled its own interpretation of its law. But the question of what constitutes an “outrageous” case will have to be determined by each justice, and several members of the Court have already signaled that they would set the bar very low.
On the current Court, the six-justice Republican majority has largely split into two factions. Thomas, Alito, and Gorsuch make up a deeply reactionary bloc who demand avulsive changes to the law on the fastest possible timeline.
Meanwhile, Chief Justice John Roberts, Kavanaugh, and Barrett make up a faction that favors most of the same policy outcomes pushed by the Alito bloc, but with some significant exceptions. Kavanaugh, for example, wanted no part of an opinion Alito wrote that, in Kavanaugh’s words, would insert the judiciary “into the Navy’s chain of command, overriding military commanders’ professional military judgments.” This middle bloc of justices also tends to move more incrementally, sometimes pushing to achieve the conservative movement’s preferred outcomes over a timeline of years rather than a few months.
But there are good reasons to fear that future Republican appointees to the Supreme Court will look more like Thomas and Alito than like Roberts or Kavanaugh. One is that Trump largely had to look to judges appointed by President George W. Bush to find candidates for the Supreme Court, and the median Bush judge was much more moderate than the typical Trump judge. The next Republican president, by contrast, will have a wide array of deeply reactionary Trump appointees to choose from — judges like Neomi Rao, Andrew Oldham, or James Ho, who make Brett Kavanaugh look like Bernie Sanders.
In a world with seven or eight Republican Supreme Court justices, in other words, the Court will likely intrude into more and more areas of American life where it has no expertise and no lawful mandate to do so. It will dismantle rights that millions of Americans depend on. And it is likely to manipulate the electoral system to keep the Court’s ideological allies in elected office.
The price of early retirements
If Sotomayor or Kagan were to die under a Republican president — or, given how Senate Republicans treated moderate Obama Supreme Court nominee Merrick Garland, if Sotomayor or Kagan were to die under a Democratic president and a Republican Senate — it is very unlikely that either could be replaced by a like-minded justice. Indeed, the Garland precedent suggests that Republicans might simply hold the seat open for as long as it took to fill it with an extremist like Gorsuch.
That could be catastrophic for liberal democracy in the United States. But there are also two reasons to hesitate before calling for every Democratic appointee to the Supreme Court to rotate off the Court the minute they can be replaced by a younger Democrat.
Relationships matter
One is the simple fact that relationships matter within an institution made up of only nine people. Shortly after Justice Anthony Kennedy’s retirement drove the Court to the right in 2018, Justice Kagan told journalist Dahlia Lithwick of her plans to keep her colleagues from doing too much damage to the law.
The trick, Kagan said, is to take “big questions and make them small.” Find ways to dispose of cases on narrow procedural grounds, or to dismiss them for lack of jurisdiction. If that won’t work, try to find five votes to hand down a narrow substantive rule that will have little impact on future cases.
Kagan also named the Republican appointee that she thought was most likely to be open to her appeals. “I’m a huge fan of the Chief Justice,” she said, referring to Roberts. She added that “I think he cares deeply about the institution and its legitimacy.”
For a while, before Ginsburg’s death gave Republican appointees a supermajority and rendered Roberts’s vote irrelevant in the biggest cases, Kagan’s strategy seemed to work. In the Court’s 2019-20 term — its last full term with Ginsburg — the Court handed down a string of narrowly decided liberal victories.
Roberts cast a surprising vote to preserve abortion rights, for example, largely because the issue before the Court in June Medical Services v. Russo (2020) was identical to the one before the Court in a previous decision supporting abortion rights. The Court also kept the Deferred Action for Childhood Arrivals (DACA) program, an immigration program created by President Obama, alive by pointing to a paperwork error by the Trump administration.
Indeed, Kagan appeared to be so successful in leveraging her relationship with the chief that the conservative Wall Street Journal’s editorial board mockingly labeled her “Chief Justice Elena Kagan” and disparaged what it labeled “the Kagan Court.”
If Thomas or Alito, both of whom are in their 70s, leaves the Court in the next two years, then President Biden would likely replace them with a liberal justice, and Roberts would become the Court’s pivotal vote once again. Should that happen, Democrats may regret what happens next if Justice Kagan is no longer around to persuade the chief to seek moderation.
Long-serving justices can build a movement
For most of his time on the Supreme Court, Justice Thomas was largely ignored by his colleagues — and for good reason. He has a penchant for opinions claiming that foundational legal principles should simply be tossed out.
Thomas’s concurring opinion in United States v. Lopez (1995), for example, closely tracks the reasoning the Supreme Court used in an infamous 1918 decision striking down federal child labor laws. He’s repeatedly called for the Court to strip millions of Americans of their free speech rights — including a 2019 opinion calling on his Court to overrule a seminal precedent ensuring that freedom of the press continues to exist — while simultaneously reading the First Amendment expansively to protect wealthy political donors. He’s also claimed that state governments should be allowed to establish an official state church.
Yet, while Thomas spent more than two decades writing lonely, nutty opinions that his fellow justices rarely joined, he slowly became the most consequential legal thinker in the United States, largely because of the way that students are educated in law schools.
A year before his death, Justice Antonin Scalia explained why he so often wrote punchy, unforgettable opinions where he might dismiss an opponent’s argument as “pure applesauce” or “argle-bargle.” “I’ve given up on the current generation — they’re gone, forget about them,” Scalia said in 2015. “But the kids in law school, I think there’s still a chance,” he added. “That’s who I write my dissents for.”
Law school textbooks are often referred to as “casebooks” because they largely compile canonical or anti-canonical court decisions, including both majority opinions and dissents. Classroom instruction frequently involves a debate over the relative merits of these majority and dissenting views. What Scalia understood is that, if he wrote engaging and memorable dissents, generations of law students would read them while they were forming their opinions about the law. And someday, some of those students would become judges — or even justices with the power to turn Scalia’s dissents into majority opinions.
But it was Thomas, not Scalia, who perfected this strategy. Liberal law students read Thomas’s opinions and often wondered how anyone could possibly agree with him. But the most reactionary aspiring lawyers read them and saw a visionary. At a time when most judicial conservatives still emphasized judicial restraint, Thomas called for the courts to do more. Strike down more laws. Cast aside celebrated precedents. Place a yoke around the neck of the law and force it to labor for the conservative movement.
And Thomas’s bold activist vision for the courts is now the dominant vision within the Republican Party. This vision drives everything from the seemingly endless barrage of lawsuits targeting Obamacare to the Court’s decision to give itself a veto power over the entire US administrative state. More than one in eight of Trump’s appointees to the federal appellate bench were Thomas clerks. A 2018 Associated Press report found that 22 former Thomas clerks “either hold political appointments in the Trump administration or have been nominated to judgeships by Trump.”
Thomas’s growing popularity among legal conservatives is also a second reason to fear that the next Republican president’s Supreme Court appointments could be more reactionary than Trump’s.
But Thomas’s tremendous influence on the conservative legal movement’s ambitions were not apparent until his third decade on the Court. It takes time to build a movement out of the handful of law students in every constitutional law class who read Thomas’s opinions and said to themselves, “Why not?”
This kind of sustained movement-building around a central leader simply is not possible if that leader has to quit their job right when they are starting to master it. It is impossible to know now whether Sotomayor or Kagan will, 20 years from now, be seen as a visionary who ushered in a new era of liberalism in much the same way that Thomas built a movement for reactionary judicial supremacy. But that certainly won’t happen if they leave the Court prematurely.
So what should Sotomayor and Kagan do?
The good news, for Obama’s two appointees to the Supreme Court, is that they do not need to decide whether to retire today. Barring unlikely events, such as the death of two Democratic senators in states with Republican governors, Democrats will control the White House and the Senate for the next two years. That’s two entire years when they can also confirm Supreme Court justices if a vacancy arises on the Court.
Realistically, however, Democrats need to win a crushing victory in 2024 to even have a chance at holding on to the Senate. Democrats need to defend incumbents in the solidly red states of Montana, West Virginia, and Ohio. They also need to figure out what to do about Sen. Kyrsten Sinema (I-AZ), an Arizona incumbent with a bathyspheric approval rating that could preclude her winning reelection — but whose recent decision to quit the Democratic Party allows her to run as a spoiler candidate who could throw Arizona’s next Senate race to the Republican.
It is certainly possible that President Biden — like another president who struggled with sky-high inflation during his early presidency, then cruised to reelection as the economy improved — could win reelection by such a commanding margin that Republican Senate candidates will be at a disadvantage in 2024.
Barring a Democratic landslide, however, the party’s opportunity to fill a Supreme Court seat will likely come to an end in 2025.
Nor is the Democratic Party’s misery in the Senate likely to solve itself anytime soon. As Stanford political scientist Jonathan Rodden explains, “as you go from the center of cities out through the suburbs and into rural areas, you traverse in a linear fashion from Democratic to Republican places.” So long as this urban/rural divide exists, Republicans are strongly favored to control the Senate because of their dominance in low-population states.
So Sotomayor and Kagan should certainly keep a close eye on the polls in 2024, and may be able to justify remaining on the Court if those polls predict a dominant electoral year for Democrats. But if they remain for too long, the consequences for the law — and for the nation — could be cataclysmic.
But we don’t know when, or who will replace him
It took over 40 hours, but Elon Musk has finally acknowledged the results of a public poll he ran calling for him to step down as CEO of Twitter.
“I will resign as CEO as soon as I find someone foolish enough to take the job!” Musk tweeted on Tuesday night. “After that, I will just run the software & servers teams.”
The admission comes after a poll Musk himself launched, in which some 17 million Twitter users — or 57.5 percent of those polled — said they were in favor of Musk resigning. Musk did not immediately accept the results publicly, which he said he’d do, but rather cast doubt on the validity of the poll.
It wasn’t just anonymous Twitter users who wanted Musk to step down. Outside investors also called for Musk to focus less on Twitter and more on Tesla. They’ve seen the Twitter drama as something that distracted Musk from his more lucrative business at Tesla, which saw its stock price fall precipitously in recent weeks. Musk has long said he eventually wanted to step down as Twitter CEO, so it’s unclear why he seemed so unwilling to accept the results of the poll calling for him to end his chaotic reign as head of the company.
All that said, the recent poll debacle demonstrates Musk’s self-destructive attachment to running Twitter, despite the fact that it has jeopardized his reputation and business success since he took over in October. It’s also another example of how Musk can’t seem to handle criticism — from debating the percentage of people in the crowd who were booing him at a comedy show to firing employees who criticized him, and now, dismissing the legitimacy of the Twitter users who voted him out of the company he just bought.
Rather than commenting on the results of the poll in the hours after it concluded, Musk took to Twitter on Monday morning and encouraged questions about whether the results were legitimate. He engaged in a Twitter thread by a user suggesting that a “deep state” bot army was rigging the poll against him. Musk replied to another user in the same thread who suggested that only paid subscribers to Twitter Blue should be able to vote in polls. He said, “Twitter will make that change.”
Polls have been a favored tactic in Musk’s erratic leadership style for making major decisions at Twitter. When he polled users about whether Twitter should reinstate the account of former US President Donald Trump, for example, Musk quickly accepted the results that were narrowly in favor of bringing Trump back on. Hours after the poll closed, Musk tweeted that “the people have spoken” and reinstated Trump’s account.
This time, though, Musk dragged his feet. On Tuesday, Musk replied to a tweet by market research firm HarrisX, which conducted its own poll and found that 61 percent of people wanted Musk to stay on.
Interesting. Suggest that maybe we might still have an itsy bitsy bot problem on Twitter …
— Elon Musk (@elonmusk) December 20, 2022