At 9:00 tonight, President Trump will announce his pick to replace retiring Justice Anthony Kennedy on the Supreme Court. This replacement is almost guaranteed to be approved by the Republican dominated Senate, barring some unforeseen and shocking revelation. This replacement is also guaranteed to be a partisan instrument for conservatives who have (brilliantly, in retrospect) played a long game for the last 40 years or so to win Congress, a majority of state legislatures, a majority of governor’s seats, and now the Presidency, and thereby stack state and federal courts with conservative judges.
All for the purpose of ending abortion rights.
This new justice means that Kennedy’s swing-vote will no longer be in play. For the first time in a long time, SCOTUS will have a solid majority of conservatives. (Thanks, it has to be pointed out, to voters who bizarrely thought that former Secretary of State Hillary Clinton was somehow MORE corrupt than Trump and a LESSER choice.)
So now SCOTUS will no longer be the godsend (pun intended) to progressive causes it has been over the last few decades. SCOTUS has been responsible for safeguarding abortion rights, LGBT rights, equal protection under the law, etc.–a great many Constitutional causes in which the legislative branch has failed us. But no longer. Progressive organizations would be foolish to challenge things in court for years to come.
Until the tide turns, how bad could it get? Pretty bad, it turns out. Grab a stiff drink and/or your favorite plush toy, because I’m about to depress you.
Expect, in the immediate future, to see an avalanche of blatantly anti-abortion legislation to pop up in dozens of states, for the purpose of triggering lawsuits that will percolate up to the new conservative-dominated SCOTUS. Up to this point, Republican lawmakers have mostly satisfied themselves with petty, disingenuous, so-called TRAP (Targeted Regulation of Abortion Providers) laws. These are laws that on the surface claim to increase medical safety, but are really intended to bankrupt abortion providers or harass them into going out of business. The need for such nibbling aroung the edges of Roe v Wade is over. State legislatures will now try to ban abortions outright, hoping that they will win at SCOTUS. And again, progressive organizations should think twice about bringing challenges they are likely to lose and thereby generate precedents that could haunt us in the future.
(Of course, I should point out that overturning Roe v Wade does NOT mean that abortion will be illegal nationwide. If SCOTUS overturns Roe, the right to an abortion will simply devolve to the States, in which case the US will become a patchwork with respect to the right to choose. A disaster, yes, but not as bad as it could be.)
And it’s not just abortion. Expect legislatures to begin passing radically conservative regulation on a number of issues near and dear to conservative hearts.
We should also not assume that this is the end of Trump’s imprint on the Court. Justice Ruth Bader Ginsburg is 85 years old. Sad to say, her health cannot last much longer, and in the event that she dies or becomes unable to continue in her duties, that’s a THIRD seat that Cadet Bone Spurs will get to fill.
There have also been rumors that Justice Clarence “Chatterbox” Thomas, currently 70 years old, is considering retiring. There have been reports for years that Thomas just flat-out hates being a Justice, and it would not surprise me if he decides to retire in the near future, especially if he thinks Trump won’t win re-election. Thomas could retire from his misery while consoling himself with the knowledge that his replacement will be a fellow arch-conservative.
Finally, Justice Stephen Breyer (a Clinton appointee), is 79. If–perish the thought–Trump wins re-election in 2020, he could have the unprecedented opportunity to name FIVE justices to the Supreme Court. (Of course, Trump himself is 72 and not exactly known for a healthy lifestyle. All this speculation could go out the window if Trump himself dies or becomes incapacitated.)
So, yeah, if Trump continues as President, and especially if he wins re-election, things will get pretty fucking bad for the Supreme Court. A conservative supermajority, held by a relatively young cadre of justices, will mean that for the next THIRTY YEARS the Supreme Court might as well not exist if you’re hoping to use it as a safeguard for liberal democracy and progressive causes.
Meanwhile, what can we do to hasten the turn of the tide? Plenty, it turns out.
- Encourage your Senators and congressthings (even if they’re Republican) to OPPOSE any judicial appointments by Trump. Period. This may be futile in the short-run, but it is important to make your political voice heard, early and often. Lawmakers do occasionally pay attention to their constituents.
- Vote Democratic. Not Libertarian. Not Green. And not “Well, I don’t like any of the candidates, so I’m not voting.” That’s bullshit. Democrats have warts, but right now the character of this nation is under existential threat, and that threat appears on the ballot with “(R)” after its name. Oh, and give money to the Democrats to the extent you can afford it. And volunteer. And participate in protests.
- Become conversationally intolerant. I’m not saying shoot your mouth off at work and get fired. But if you find yourself at a dinner party, or a family gathering, or standing in line at the grocery store, whatever, and someone spouts Republican/Trumpian talking points in your direction, bring the conversation to a halt until you’ve made it clear that you disagree, and why. The conservatives around you need to know the truth, and they also need to know that not everyone shares their misguided opinions. Too often, bullies think that because nobody ever says anything in opposition to them, they must be right. Disabuse them of that notion.
- Vote with your wallet. Do not knowingly patronize any business associated with Trump, with Republicans, or with retrograde causes. You can’t know this about every person or business you come into contact with, but if they’ve made their positions clear, they’ve made it easier for you to know where to, and where not to, spend your money.
There’s lots more to be said, but this essay has gone on long enough. It’s not an exaggeration to say that we are in a crisis, one that’s not likely to end until at least January 2021. But we can (hopefully) claw back the House of Representatives in November, with a teensy weensy chance we could claw back enough seats in the Senate to effectively challenge dangerous judicial nominations and cripple Trump for his last two years in office. We’re not dead yet.