After all of the books about President Donald Trump – the latest being Bob Woodward’s “Fear” – is there any doubt that the man in the Oval Office is unfit? We don’t need $30 books, however, to form a reasonable conclusion that Trump has no business running this country; he proves it almost every day with his tweets. No doubt Trump is weakening our democracy but I believe there is a much more ominous threat – the conservative-controlled Supreme Court.
Warren Burger was Chief Justice when Roe v. Wade was decided and he was still presiding when I was sworn in to practice before this prestigious body. It was simply a box checked on my resume; I never argued a case before the Court nor planned to. Still, it was a sobering experience.
The session began promptly at 10:00 AM with the traditional chant by the Court’s Marshal (bailiff). This short recitation is repeated each day the Court is in session and ends with “God save the United States and this Honorable Court!” Then the curtain behind the elevated bench opened and the nine robed justices stepped out in unison to take their seats. It’s a very formal ceremony and quite intimidating for lawyers waiting to argue their cases. For this is the most powerful institution in the nation — the court of last resort.
No doubt that’s why Republicans have placed such great emphasis on filling Supreme Court vacancies over the years. And if Judge Bret Kavanaugh — the current nominee — is confirmed, conservatives will have the most rock-solid, five-member majority on the Court in the past 30 years.
Many Republicans, particularly evangelical Christians, have worked tirelessly to overturn Roe v. Wade, the 1973 decision that provides women with a constitutional right to an abortion in the United States. Recent polls indicate that their efforts conflict with a majority of Americans that don’t want this landmark decision eradicated. It’s an emotional, polarizing issue.
Four Republican-appointed justices on the Court are members of the Federalist Society, an elitist organization of pro-life conservatives and libertarians whose members believe the Constitution should be interpreted as written. Kavanaugh would make it five. They are all “originalists” — judges who attempt to divine how the Founders intended the Constitution to be interpreted and make their decisions accordingly. So, I believe there’s a good chance Roe v. Wade will go down.
But I don’t think that’s the worst this Court can do. Just look at some of the decisions conservative justices have made during the past 20 years. In the 2010 Citizens United case, they took a narrow issue involving a 2008 video critical of former First Lady Hillary Clinton and issued an unnecessarily broad opinion. The Court essentially held that corporations and unions are people under the Constitution’s First Amendment and that money is speech. As a result, wealthy, even anonymous, special interests can unduly influence elections with unlimited amounts of money.
In 2013 the conservative majority struck down a key section of the Voting Rights Act that required certain states to get advanced federal approval for changes to voting laws. The involved states, including Texas, North Carolina and others that were controlled by Republicans, immediately enacted or implemented strict voter ID laws that were specifically designed to make it harder for those who typically vote for Democrats to cast ballots. These laws went far beyond simply showing a picture ID to vote. They shortened early voting days, restricted voter registration and much more.
But the future could be even more problematic. Republican’s continue to attack the Affordable Care Act (Obamacare) and Kavanaugh’s vote may be all they need to scuttle it. Medicare, Medicaid and other social safety net programs could also be in jeopardy from GOP attacks.
Legal issues involving the president are sure to come before the Court. If Kavanaugh is confirmed, we can almost be certain that his decisions will favor Trump. Can he be subpoenaed to testify to a grand jury? Can he be indicted as a sitting president for the crimes he has likely committed? Should he even be the subject of an investigation? Kavanaugh would probably decide: No!
Republicans have focused on appointing conservative federal judges for decades and Trump could appoint hundreds more. I fear that in time these jurists will rubber stamp conservative policies on government regulations, climate change, religion, health care and immigration while erecting roadblocks for progressive legislation. In fact, that is exactly what Republicans want.
Let me be clear; liberal justices should not dominate the agenda either. The Court should be balanced and definitely nonpartisan. And the majority should not be wedded to an originalist ideology that applies 18th century thinking to 21st century issues.
Trump has divided this nation like no other president in modern history. If this continues, progressive legislation passed by a Democratic controlled Congress in the future will likely face unrelenting conservative challenges. Likewise, liberals will challenge conservative legislation and policies. In this scenario, the Court could actually become the de facto government, virtually dictating what the executive branch can do and what Congress can legislate. I believe Kavanaugh’s confirmation would be a step in this direction.
Hopefully, the polarization of the Trump era will subside and voters will unite under centrist, progressive leadership. But the conservative Court could hold sway for an entire generation — and there’s not much we citizens can do about it.