June 27, 2017
It’s the end of January, 2019. Nancy Pelosi has just been sworn in as Speaker of the House following a major Democratic victory in the midterm elections. In the Senate, the Republicans managed to maintain a slim majority due to the favorability of the 2018 Senate map, with Democrats maybe gaining a seat or losing only one or two. President Trump’s approval ratings are floundering in the low 30s and upper 20s, and a rich field of Democratic challengers has emerged. Though polling is scarce and premature, even the weakest of these candidates holds a lead in the double digits in a hypothetical matchup against Donald Trump, and conventional wisdom holds that his defeat is almost inevitable.
In this scenario, you are a social conservative with a bit of an extreme streak. You can’t seem to grasp how, despite everyone you know opposing abortion and all your elected officials being pro-life, nobody can do anything about it due to Roe v. Wade. You are absolutely livid that the same court legalized same sex marriage despite the opposition of all elected officials in your deep red state. You are informed and realistic enough to understand the Supreme Court, the confirmation process, and the political reality of the time in which you live. What do you do?
You hide behind a bush, pop out early in the morning, and give the 86-year-old Ruth Bader Ginsburg a heart attack. Or you shoot Elena Kagan or Sonia Sotomayor. The point is that, on a Court that had been divided 5-4, one of the liberal seats has just been opened up (in this scenario, Justice Kennedy is still on the Court). Though the nation is shocked by the violence, it now falls on President Trump to appoint a new Supreme Court Justice, and on the Republican Senate to confirm the appointment. The Democrats complain, of course, but without a filibuster they have no real power to stop the confirmation. The Republicans are subdued and somber, but after waiting an appropriate mourning period, can’t be expected to leave the Supreme Court seat open for two years. The fifth conservative justice is confirmed on a party line vote, or possibly with Joe Manchin. Either way, Democrats are left bitter by the situation.
2020 comes and goes about as expected. Elizabeth Warren is sworn in as the first female President of the United States, Democrats hold the House and do even better in the Senate, benefitting from fighting for the seats won in the excellent Republican year of 2014. They do better in statehouses, though not as well as the 2010 Republicans, making the House more competitive for the coming decade, though it still has a slight Republican lean. Justice Kennedy retires and is quickly replaced by President Warren’s liberal nominee. Democrats confirm the nominee easily, acting with apparent glee at the Republicans powerlessness to stop them, and the Court loses its swing vote, splitting it even more clearly between 5 conservatives and 4 liberals.
As 2022 approaches, something happens to one of the conservative judges. Clarence Thomas has a heart attack, perhaps, or a liberal activist, galvanized by a landmark 5-4 ruling and the upcoming midterms, repeats the tactics of his conservative counterpart a couple of years earlier and assassinates Neil Gorsuch, a seat viewed by liberals as stolen. With the electoral fate of the Senate unclear, President Warren tries to push a liberal judge through, but for some reason fails. Maybe she’s to wrapped up in her own scandals, overextends by appointing someone too far to the left or with questionable qualifications, or perhaps her first candidate must withdrawal amid controversy. Either way, 2022 midterms come around with only 8 justices seated, and with a couple of major cases on the horizon, the Court becomes a major midterm election issue.
The 2022 midterms are tighter than expected, yielding a Republican majority in the House of merely 5 seats. The Senate hangs by a thread, split 50-50, with the Democrats keeping the majority due to the vote of the Vice President. The next day, Senator Heidi Heitkamp is eating breakfast at a diner in North Dakota when three masked men, presumably from a nearby white nationalist militia, open fire with automatic rifles. Five people are killed, including the Senator, and ten wounded. More importantly, the Senate is now under Republican control. Democrats demand a Democratic replacement, of course, but the Republican governor of North Dakota isn’t about to comply, either appointing a Republican or, in a less antagonistic move, leaving the seat open until it can be filled in a special election. Republicans hold a vote on President Warren’s nominee, but she is rejected. The vote is 50 against, 49 in favor, and it appears this margin is likely to hold for all future nominees. That is, if the Republicans are even inclined to allow a vote. Five days later, a crude bomb goes off at a Republican party, killing ten members of the House and putting the lower chamber of Congress under Democratic control, at least temporarily. Violence has now become the norm in American politics, with the special elections to replace the deceased becoming in some cases literal battlegrounds.
The point isn’t that this is exactly how things will play out but to draw a realistic picture of how things could play out. The specifics may change, but it is easy to see how, when a nation is as divided as we are and power can transfer on one death, how a series of strategic decisions could escalate into full-blown civil war.