Justice Anthony Kennedy announced his retirement and Democrats were plunged into the Slough of Despond. Republicans all but sang the Ode to Joy, but will Trump’s voters live to regret this turn of events?
Trump was able to add Neil Gorsuch to the court a year ago when Majority Leader Mitch McConnell, in an unprecedented display of partisan lese-majeste, denied Merrick Garland, Barack Obama’s nominee, a vote, leaving a Supreme Court seat vacant for many months.
Stealing the seat from Obama guaranteed that, if a Republican won in 2016, the Scalia seat would remain committed to the orthodoxy of the right, under the nom de guerre of originalism or textualism. This is conservative code for finding justification for whatever reactionary beliefs the justice holds by means of a selective and self-serving reading of history.
Seating Gorsuch assured a 5-4 majority, or at worst a 4-5 minority, as long as the variable Kennedy served. Adding a more reliably right zealot will solidify 5-4 as far as the eye can see. And since Ruth Bader Ginsburg is 85, among the oldest justices ever, a permanent 6-3 advantage is far from implausible.
The next oldest justice, Stephen Breyer, will turn 80 in August. His retirement would give the Trumpist Republican Party a 7-2 majority until the relatively young originalists begin to expire, say in 2035, but even then only if a Democratic majority controls the Senate at the same time.
No wonder the hair of Democrats is afire at the prospect. They worry that Roe v. Wade will be reversed as Trump promised when campaigning. Same sex marriage would likely be equally threatened. Civil Rights might follow. Immigrants would become persona non-grata. The vote would be restricted to the approved demographics groups. And in this telling there would nothing to prevent the evangelical caucus from enacting “The Handmaid’s Tale” into law.
This may seem a little wild-eyed to more sober, or less ideological, citizens, but it is certainly true that Democrats have no way of stopping Trump and the his handmaids from ramming though another justice or two or three. Before the filibuster was eliminated by McConnell in 2017, to get Gorsuch his seat, sixty voters were needed to bring nominees to a vote. Now a simple majority suffices.
The court already has three justices aboard who won by the narrowest margins ever — Gorsuch 54-45, Alito 58-42 and Thomas 52-48. By contrast, Sotomayor and Kagan got 63 ayes, Roberts 78, Breyer 87 and Ginsburg 96, but Congress was less poisonously partisan then. A certain civility and dignity were observed in regard to Supreme Court nominees.
No more. McConnell and Trump have showm they will do anything to win. Democratic partisans are urging their representatives to sink to the same level. But they have little ammo since they do not control any of the the branches of government. The Democrats have 49 of 100 seats and not all of them are sure to vote against Trump’s next nominee. Thus, a Trump fait accompli seems imminent.
This is good news for him. It seems very likely, given the president’s legal and ethical troubles, that the Supremes will be called upon to rule on whether a sitting president can be compelled to testify, indicted, tried, convicted, in either state or federal courts, of bribe-taking, collaboration with enemy powers, profiting from his office, destroying evidence, obstructing justice. Make your own list. But why bother, if the highest court in the land is in his pocket?
This may be too dark. Surely the Justices wouldn’t let partisan ideology prevent them from doing their duty. But duty is in the eye of the ideologue. So, we may be stuck with a Trump free of any check, balance or jeopardy for as long as he chooses to serve, or as long as Putin is willing to keep tilting elections in Trump’s favor.
That being the case, will Trump’s base find an unchecked Freedom Caucus Court to their liking? Perhaps not so much. Trump ran on the promise of taking care of the forgotten man, the coal miner, the working family squeezed by costly healthcare, college debt and global competition, and surrounded by ungodliness.
Well, the Trump Court may be vicious to immigrants and gays and willing to ban Muslims, but will the coal miner’s daughter or wife be happy to let the court dictate their reproductive choices? To permit laws that steal from the schools and hospitals they rely on to give tax cuts to the rich? Will they be surprised to discover their votes don’t count when the Court permits partisan and racial gerrymander so the party in power can rig the game in their favor?
Will these middle and working class people really like a Court that constantly rules in favor of the state when it wants to take the property of people or search them or pry into their private lives?
Do Trump’s voters all work for themselves, or do they have employers and bosses? If so, what happens when the Court rules overwhelmingly to look out for the interests of big corporations and to dismiss the rights of employees?
Will the Trump voters really like a Court that serves as the tool of the same Wall Street, multinational corporations, and global banking powers that the president ran against? A Court that thinks the State is more trustworthy that the people. The tendency of the originalists, with their veneration of 18th century elitist mores, has often been to see the people as the rabble or the mob.
So, surprise Trump voters! The Trump Court isn’t going to rule in your favor. It’s going to side with the State, what you call “the swamp,” and the money power, what you call “the man.” Their idea of MAGA is not be the same as yours. Good luck.