Supreme Court - Musings and Expectations

Well, Anthony Kennedy is retiring, and Donald Trump will get his second Supreme Court pick. Woo friggin' hoo.

For starters, perhaps Republicans will now embrace "activist judges?" I'm inclined to think they did so long ago, perhaps in the matter of Bush v. Gore? I can't accurately express how disingenuous this line of argument has been my entire life: after all, Republicans have nominated the median Supreme Court justice ever since the Burger Court in the late 1960s. 

As a side note, I think that the Supreme Court will have a legitimacy problem on its hands if it continues to hand down 5-4 "conservative" decisions based on partisan preference, particularly when 4 of the 5 "conservative" justices will have been nominated by presidents who entered office after losing the popular vote. 

But I digress. The New Yorker's Jeffrey Toobin recently posted a fantastic article about what to expect in the coming years. He starts with recognizing that Justice Kennedy was by no means what Rush Limbaugh and company would characterize as some "activist liberal judge."

Kennedy is no liberal. He provided the fifth vote to deliver the Presidency to George W. Bush in Bush v. Gore; he was the author of the majority opinion in Citizens United v. Federal Election Commission, which hastened the deregulation of American politics; he upheld Trump’s travel ban this term; and his votes on the day-to-day grist of the Supreme Court’s docket—on labor law, the environment, and health care—hewed closely to those of his fellow Republican nominees. But, to the dismay of conservatives, he departed from their orthodoxy on some key issues in addition to gay rights, among them affirmative action, the death penalty, and, most notably, abortion rights. 

Toobin then notes one of Trump's shrewd political moves:

The whole purpose of Trump’s Supreme Court selection process has been to eliminate the possibility of nominating someone who might commit Kennedy’s perfidies of moderation. The activists from the Federalist Society and the Heritage Foundation who supplied the President’s list of twenty-five prospective nominees are determined to tear down the monuments, on select issues, that Kennedy has built. Their labors have already produced one soaring success, in the confirmation, last year, of Neil Gorsuch. His extremism has exceeded that of his predecessor Antonin Scalia and equalled that of his colleague Clarence Thomas, the Justice with whom he has voted most often. 

Clearly, while Trump's personal life should shame anyone who self identifies as "christian," "family values oriented," "respectable," or "decent," many evangelicals have cast their lot with President Trump for just this moment.

I fear what "this moment" will bring, but here is a decent primer for step one:

Yet it’s far from certain that the public wants the kinds of rulings that a brazen conservative majority would produce. So the nominee and his or her supporters will avoid spelling out the implications of this judicial philosophy. As with Gorsuch, the nominee will be supported with meaningless buzz phrases: he or she will be opposed to “legislating from the bench” and in favor of “judicial restraint.” 

I think it is important, however, to cut through all of the niceties and the discussions about process, and get to the meat and potatoes of what is coming from our new Unbound Conservative Supreme Court. Here is the highlight reel, such as it is:

It will overrule Roe v. Wade, allowing states to ban abortions and to criminally prosecute any physicians and nurses who perform them. It will allow shopkeepers, restaurateurs, and hotel owners to refuse service to gay customers on religious grounds. It will guarantee that fewer African-American and Latino students attend élite universities. It will approve laws designed to hinder voting rights. It will sanction execution by grotesque means. It will invoke the Second Amendment to prohibit states from engaging in gun control, including the regulation of machine guns and bump stocks.

Probably not surprising, since every Republican politician in the country has expressed fealty to these notions, if not in these precise terms. However, this coming unbridled conservative majority has more nightmares in store, we can be sure:

 In many respects, the most important right-wing agenda item for the judiciary is the undermining of the regulatory state. In the rush of conservative rulings at the end of this term, one of the most important received relatively little notice. In Janus v. afscme, a 5–4 majority (including Kennedy) said that public employees who receive the benefits of union-negotiated contracts can excuse themselves from paying union dues. In doing so, the Justices overruled a Supreme Court precedent that, as it happens, was nearly as old as Roe v. Wade. (Chief Justice John Roberts, who has made much of his reverence for stare decisis, joined in the trashing of this precedent, and will likely join his colleagues in rejecting more of them.) 

To my Republican-voting, machine-operating, union buddy in Ft. Wayne (to take a single example of someone who I note to consistently vote Republican in direct contravention of his own self interest, apparently in some misguided sense of grievance directed toward pointy headed intellectuals and college leftists), perhaps you ought to familiarize yourself with the term Faustian Bargain. 

On a closing note:

Kennedy’s words at the conclusion of the Obergefell opinion deserve to be his judicial epitaph. “It would misunderstand these men and women to say they disrespect the idea of marriage,” he wrote. “Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” But the Constitution grants only those rights that the Supreme Court says it grants, and a new majority can and will bestow those rights, and take them away, in chilling new ways. 

For the record, pursuant to Marbury v. Madison, the Constitution says precisely what the Supreme Court says it says. The Constitution means what the Supreme Court says it means; plain English is only so persuasive (i.e. the complete elimination in legal discourse of the phrase "well-regulated" from the 2nd Amendment). 

To my lone reader, I implore you to look deep into your soul and ask what rights you presently have that would be eliminated by powerful interests, given the chance. Property rights? Familial rights? Contractual rights? Religious rights? Remember, the Supreme Court does a lot more than navel gaze over abortion; it affects essentially everything. Next time you're forced to sign a mandatory arbitration clause, for example, be sure to thank your conservative majority on SCOTUS for its enforceability (and good luck finding a lawyer to take your case to arbitration on contingency over the mere $1,000/year you've lost for the last decade due to getting ripped off; I can tell you what it would cost to pay your lawyer hourly and it well exceeds your $10,000 damages).

In reference to the legitimacy problem the court will face, recall that Democrats can currently retake the House of Representatives by garnering 55% of the popular vote to get 51% of the seats. The converse of that means that Republicans retain control of the House by losing the popular vote with 46%. Now, imagine a landslide where Democrats take the House and the Senate, and start passing popular progressive legislation only to have it struck down by a 5-4 conservative Supreme Court, replete with "Justice" Merrick Garland Neil Gorsuch; a court that is 5-4, and 4 of the 5-vote majority was installed by presidents who entered office after having received fewer votes than their opponents. Legitimacy problems abound.

As a parting note, I simply suggest that we are in for more, not less, domestic disturbance in this country. I suppose that probably is par for the course, as Americans are a quarrellous bunch; the good old days weren't really that good.