Courtship and a Powerful Lurch to the Right

The United States Supreme Court is “judgment proof.” There is no reversing it on constitutional issues, and the U.S. Constitution is the least amendable such foundational document in the democratic world. While the Equal Rights Amendment, proposed in 1972, might someday generate the necessary statewide approval (one more state needs to ratify), the last amendment to the constitution, the 27^th which necessitates an intervening election for Congress to give itself a raise), passed in 1992 but was introduced in 1789. Wow!

In the 20^th century, several major Republican appointees to the bench have gravitated slightly or even greatly towards the left. No one evidenced that trend like Eisenhower-appointed Chief Justice Earl Warren (former Republican governor of California), an activist jurist who became a major civil rights activist. Republican Ronald Reagan appointed now-retiring Supreme Court Associate Justice, Anthony Kennedy, in 1987. He became known as the “swing judge” who actually moved the court to support gay marriage by his vote.

With Kennedy gone, it is clear that the President’s advisors did not want to pick a judge who was likely to leave those most conservative leanings over time. Trump selected 53-year-old Brett Kavanaugh, a respected jurist whose staunch conservative leanings are solidly documented during his tenure as a justice on the District of Columbia Court of Appeals, often considered to be the second most important court in the land. And while the confirmation fight is expected to be vituperative, it is very interesting to note that since Donald Trump’s inauguration, the Supreme Court has already handed conservatives a litany of decisions while virtually blanking out liberal issues where it really matters. Justice Kennedy swayed back towards his conservative roots in his final year on the bench.

Writing for the ABA Journal (July 6^th), UC Berkeley School of Law Dean, Edwin Chemerinsky explains that pattern of post-Trump election decisions by that court: “Conservatives won virtually every major U.S. Supreme Court case decided during the 2017 October term. Kennedy leaving the court and likely being replaced by someone even more conservative, makes this term the harbinger of what is likely to come for a long time.

“I cannot think of another term since October 1935 in which conservatives prevailed in so many important cases during a single term. One reflection of this is found by looking at the 5-4 decisions. There were 19 5-4 rulings out of 63 decisions this most recent term. Kennedy voted with Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito and Neil M. Gorsuch in 14 of them. He voted with the liberal justices–Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan–zero times. A year ago, in the ideologically divided cases, Kennedy was with the liberals 57 percent of the time. Two years ago, Kennedy was the key vote to uphold the University of Texas’s affirmative action program and to strike down key provisions of Texas’s restrictive abortion law… Sometimes the court ruled broadly; at other times narrowly. But almost always, it was in the directions that conservatives preferred.”

Indeed, cases supported Christian cake-makers who refused to provide a cake for the celebration of a gay marriage, upheld the President’s travel ban, ruled that public service employees could not be forced to pay union dues even if they benefited from the collective bargaining agreement, decided against a California law requiring family planning clinics to provide information involving contraception and abortion and found technical reasons not to consider the Constitutionality of partisan gerrymandering. The only concession to liberal values was a requirement that, before accessing GPS location tracking information in a criminal investigation, police must first secure a warrant.

Given the age of the liberal justices, if Donald Trump is able to appoint more replacements to the court, the court will swing severely right for decades, no matter who is elected to every other federal office. Even without having that benefit, given the age of most of the conservative justices on that bench, the United States is in for a very long period of pro-business, anti-environmental and financial regulatory positions and severe limits to civil rights. These court appointments are the most “successful” results – if you lean severe right – of any Republican president in recent memory.

I’m Peter Dekom, and I am afraid that the United States is finished taking three steps forward for a very long time; this is the time where it is taking four steps back.