Until recently, those of us alarmed by the current United States administration’s attacks on NATO allies, free trade, the free press, science, human rights, the environment, education and the independent judiciary took comfort in the thought that Donald Trump, too, shall pass. It’s possible (if not likely) that the Democrats will regain control of Congress in the November mid-term elections. Perhaps Special Counsel Robert Mueller will show that Trump, his unlovely children, or his close associates actually broke a law or ten. At least, Trump may have a hell of a time getting re-elected in 2020 if even a halfway decent Democrat runs against him.
But it may not matter. By then, the Supreme Court of the United States will have become the most reactionary in modern times, thanks to Trump. He’ll be gone. The court will continue to drag the country backwards for decades to come. Trump has already succeeded in putting an ultra-conservative on the bench: now that Justice Anthony Kennedy has retired, he has a chance to remake America’s judiciary. He has said he will announce his choice on Monday, 9th July.
Evangelical Christians voted for Trump in overwhelming numbers, not because they thought he was a “godly” man (even they aren’t that naive), but because he promised to nominate justices who’d overturn Roe v. Wade, the 1973 decision giving women the right to an abortion. As a bonus, a new Trump justice might also help reverse marriage equality, dismantle Obamacare, rein in the Environmental Protection Agency’s ability to regulate air and water quality, and abolish affirmative action.
Trump has not disappointed them so far. Neil Gorsuch, his first court pick, is a graduate of Harvard Law School, holder of an Oxford D.Phil., and a devout Roman Catholic. He believes in Natural Law, that is, good and evil are fixed and derive from divine decree, as well as “originalism”: he holds that the US Constitution must be understood according to what the authors meant at the time it was written—in the 1780s. The Right would like to see Trump choose someone even more inclined to dismiss the Constitution as a “living” text subject to interpretation for the modern world, perhaps someone with an even more theocratic view.
Conservative think tanks, including the Heritage Foundation and the Federalist Society, furnished Trump with lists of candidates. According to news reports, Trump has narrowed the field to seven possibilities.
William Pryor, an Alabama appellate judge, has called the Roe decision “the worst abomination in our constitutional history.” Amul Thapar of the 6th Circuit Court of Appeals, has little experience, but he would be the first Indian American on the high court and comes from Kentucky, home state of Republican senate leader Mitch McConnell. Joan Larsen, another 6th Circuit judge, also has little experience, but she clerked for the late Justice Antonin Scalia, an uber-conservative. Thomas Hardiman and Raymond Kethledge, also appellate judges, have distinguished themselves by ruling that strip searches for anyone who gets arrested are perfectly permissable, and against an Obama administration measure to combat racial discrimination from employers.
The favorites appear to be Brett Kavanaugh and Amy Coney Barrett, both popular with activists on the right. Barrett, a former professor of law at Notre Dame University and newly-minted federal judge, has suggested that jurists should interpret even settled law in terms of their personal understanding of the Constitution. She’s young (46), devout, telegenic and once informed Notre Dame law graduates that their careers are merely the means to an end “and that end is building the kingdom of God.”
Kavanaugh worked with Kenneth Starr in the 1990s, investigating President Bill Clinton’s affair with Monica Lewinsky. George W Bush appointed Kavanaugh to the powerful DC Court of Appeals, which may hurt him, as Trump is wary of the Bush family and their political cronies. On the plus side for culture warriors and Trump supporters, Kavanaugh voted against allowing a pregnant immigrant teenager to get an abortion, and has said in a 2009 law review article that he thinks presidents should be free from “time-consuming and distracting” lawsuits and investigations as they “ill serve the public interest.”
“No American institution has more impact on American lives than those nine jurists in their black robes”Of course, Trump could choose someone not on the DC radar, a reality show-style surprise. After all, Supreme Court nominations have always been political theatre. And while it’s likely that Trump’s pick will be confirmed, the senate is so divided, Republicans can only afford to lose one vote. Activists will spend millions trying to rile up constituents and influence senators. Moderate Republican senators like Lisa Murkowski and Susan Collins suddenly wield tremendous power.
Collins is already the object of a big ad campaign in her home state of Maine, urging her to stand firm for women’s reproductive rights and say no to Trump’s nominee. Collins has said that she won’t vote to confirm anyone who has “demonstrated hostility” to Roe. Politicos are parsing her words with rabbinical devotion: does “demonstrated” mean she’d vote for someone who might be anti-choice but has not said so?
The fight over the Supreme Court is especially bitter this time with Democrats still angry over the “stolen seat” that they should have been allowed to fill in early 2016. Senate majority leader McConnell refused to even vote on Barack Obama’s nominee Merrick Garland on the logic that since it was an election year, it would be improper not to let the American voter in on the Supreme Court pick. Well, 2018 is an election year as well, and some Democrats argue that the senate shouldn’t consider Trump’s court choice until 2019, after a new congress has been elected.
Besides, they say, the Supreme Court may have to rule on matters relating to possible malfeasance by Trump administration officials, the Trump family and possibly even Trump himself. If Special Counsel Robert Mueller indicts Trump, he will surely fight the charges all the way to the Supreme Court. Would Gorsuch and Trump’s new pick (whoever she may be) recuse themselves from the case? Would they uphold an indictment of a sitting president? Or are they his insurance policy against impeachment and possible criminal conviction?
The Supreme Court is often ahead of the country. In 1954, most Americans disliked the famous Brown v The Board of Education of Topeka, Kansas, the landmark ruling mandating desegregation of public education. Americans have had their doubts about legalising homosexuality and eventually same sex marriage, reading people their rights when they’re arrested, outlawing the death penalty for juveniles, outlawing prayer in schools, making the EPA regulate greenhouse gases, upholding Guantanamo detainees’ access to legal counsel.
Eventually, a majority of Americans accept the social changes legitimised by these decisions. But not all: one of Trump’s nominees for a federal judgeship in Louisiana refused to agree that Brown was correctly decided. Christian fundamentalists have been working for years to overturn reproductive rights, gay rights, and allow religion in taxpayer-funded institutions. Progressives used to trust in the courts to protect minority rights and uphold science. That trust may soon prove misplaced. A conservative Supreme Court (and all the reactionaries Trump has quietly put on lower court benches) could negate what many of us consider settled rights.
About 42 per cent of Americans did not vote in the 2016 presidential race. Many say their vote doesn’t count, or it doesn’t matter: it’s all about rich people getting richer. But, to paraphrase Obama, elections have consequences. Presidents get to choose Supreme Court justices. While Washington changes hands from Democrat to Republican and (perhaps) back to Democrat again, no American institution has more impact on American lives than those nine jurists in their black robes.
