Before I restart my Trump series, I would like to tackle the issue of the Supreme Court. In late June 2018, Associate Supreme Court Justice Anthony Kennedy announced that he would retire effect July 31, 2018. That meant that Trump would get another crack at putting another far-right, corporate justice on the court and set us back decades. This might also lead to a constitutional crisis.
Soon after Kennedy made his announcement, Trump announced that he was nominated Brett Kavanaugh as Kennedy’s replacement. Of course, this sparked more ire from the left because of Kavanaugh’s history and views of the executive branch.
In the months that followed, there were rumblings from Democrats to hold off the confirmation hearings until after the midterms — much like McConnell did with the confirmation of the late Antonin Scalia’s replacement during the 2016 presidential election — but everyone knew that wouldn’t happen. There was a drive from the Republicans to get the confirmations hearings for Kavanaugh done as soon as possible because they didn’t know whether or not they’d be wiped out by a blue wave or otherwise lose the Senate. Also, we know that McConnel is a POS and the Republicans in their current incarnation had no intention in obeying the rules they made up anyway.
Additionally, the Republicans have withheld over 90% of the documents connected to Kavanaugh’s past. It is perfectly clear that the Republicans had no intention of playing fair.
Basically, Kavanaugh’s confirmation is a foregone conclusion. The question is how will Kavanaugh affect the judicial branch and how can we adapt to this new reality?
Anthony Kennedy was nominated to the court by Ronald Reagan and confirmed in 1988. While Kennedy was a conservative judge, he had served as a swing vote in certain cases, including King vs. Burwell (2012) and Obergefell vs. Hodges (2013). The decision for the former case protected the Affordable Care Act and the decision in the latter case recognized the legality of gay marriage. Unfortunately, Kennedy was also in the majority for cases like Shelby vs. Holder, which effectively gutted the Voting Rights Act of 1965, and we can expect even more of that in the future.
About Brett Kavanaugh
Brett Kavanaugh comes with an extensive résumé, which includes:
- Time spent working for Kenneth Starr, the independent prosecutor who investigated President Bill Clinton in the late 1990s.
- Time spent working for George W. Bush. Kavanaugh was Bush’s Solicitor General before being confirmed to the Court of Appeals.
- His time on the Court of Appeals for the District of Columbia Circuit. Kavanaugh was placed on that court in 2006 and has served there ever since.
Kavanaugh is only 53 years old, but since his history was extensive, there was a lot of paperwork to process. That is the reason why conservatives tried to warn Trump from nominating him, even though he was handpicked by the Federalist Society. If the Republicans were being honest actors, it would take more time to get Kavanaugh through the nominating process, but these are the same people who pushed through various cabinet picks despite missing paperwork.
Once confirmed, Kavanaugh will give the court yet another Yale Law grad (all justices have either graduated from Yale or Harvard Law School). He will also tilt the court hard to the right.
The Implications of Kavanaugh’s Confirmation
While we were fighting each other during the 2016 presidential election, a largely ignored issue was the Supreme Court and courts in general. It was certainly in the back of my mind, but far too many people on the left neglected to focus on this issue when trying to convince others to vote a certain way. As more and more people are finding out, the courts should serve as another avenue to affect change and to fight unjust laws and rules made by certain agencies (like the damned FCC). Thus, it would make sense to elect someone who would nominate qualified judges who would uphold the rule of law.
Unfortunately, reactionaries and other far-right ideologues were more focused on the Supreme Court; thus, their vote for Trump was in part a push for an equally reactionary court. Of course, their main target is Roe v. Wade, but there are far-reaching implications in other areas.
Why Do I Oppose Overruling Roe v. Wade?
I have not made a post in which I talked exclusively about abortion, but I have briefly discussed the topic before. These are my thoughts on the matter, as best summarized in the post entitled, [Side Rant] Take Your ‘Ideological Purity’ and Shove It …:
I personally hate abortion, but I feel it should be “safe, rare and legal.” On a related note, contraceptives should be available and people should have sex education to prevent unwanted pregnancies, abortions, and stop the spread of diseases.
I oppose overruling that 1973 decision because it will cause more harm than good — and I don’t believe it will do any good, to be honest. Like it or not, and whether it’s legal or not, abortions will happen. Thus, if abortion is illegal, there will be no regulations in place to protect patients so women will die from getting unsafe abortions.
Before abortion was legal in the United States, more women got back-alley abortions and did things like use coat hangers to terminate unwanted pregnancies. This will happen again if Roe v. Wade is overturned and we might see other penalties, like jail time for women who get abortions and doctors who perform them.
That’s not all, though. If abortion is made illegal, it will only be a matter of time before reactionaries turn their attention toward getting rid of all contraceptives. Like it or not, unmarried people will have sexual intercourse. Without contraceptives, there will be more unwanted pregnancies and more people’s lives will be cut short because of the spread of HIV, AIDS, and venereal diseases.
Additionally, some women need birth control pills to regulate their periods. That doesn’t matter to pro-lifers. They’d ban the pill because it can be used as a contraceptive.
How Much Damage Can a Hard-Right Supreme Court Do?
Besides reproductive rights, there are many other areas where the Supreme Court can do damage with a hard-right slant they include:
- The environment
- Civil rights
- Workers’ rights
- Campaign finance
- Voters’ rights and election law
- The rights of protesters
- Free speech in general
- Net neutrality
- The separation of church and state
- The powers of the executive
From the papers leaked by Sen. Cory Booker and other on or before September 6, we know full well where Kavanaugh stands on various issues.
- He feels that the Open Internet Order of 2015 was “illegal.”
- He said that Roe v. Wade wasn’t settled law.
- He opposed affirmative action and wanted to dispute the protected status of native Hawaiians.
If this wasn’t bad enough, in written papers, Kavanaugh made it clear that he didn’t feel that presidents should be held accountable. This is a disastrous pick.
How Is Bad the Supreme Court Now?
So far, with the stolen seat occupied by Neil Gorsuch, the SCOTUS has already made a series of 5-4 decisions that have negatively impacted people:
- Janus v. AFSCME. While people might argue that this 5-4 decision was reasonable — the majority ruled that non-union employees should not be charged union dues because that violated the First Amendment — this 2018 decision may pave the way for a national right-to-work movement. As Justice Elena Kagan pointed out in her dissenting opinion, non-union members were protected by the unions because of those organizations’ role collective bargaining. The 5-4 decision thus overturned the precedent set in Abood v. Detroit Board of Education.
- National Institute of Family and Life Advocates v. Becerra. In this decision, the majority ruled that California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act likely violated the First Amendment. The act was passed to make sure that all women would be granted access to reproductive health services regardless of income. The act also required “crisis pregnancy centers” run by pro-life groups to inform women of all of their options, including contraception and abortion.
- Trump v. Hawaii. On January 27, 2017, Donald Trump signed an executive order banning the entry of individuals from seven mostly-Muslim countries into the United States for 90 days. After a few challenges, Trump issued a new order on March 6, 2017, that banned individuals from six countries from entering the United States. The most decisive blow to these orders came from a federal court in Hawaii, but Trump Tried again and made a September 24, 2017 Proclamation banning individuals from eight countries. The Supreme Court effectively held up Trump’s proclamation.
We already saw the effects of Trump’s travel ban. It immediately created confusion, but it hurt people who legally worked in the U.S. Essentially, if someone works in the U.S. but decides to visit their home country, they could be blocked from re-entry. Even if someone is here legally and has a green card, they may be banned from reentering the country.
Even before Scalia kicked the bucket, the Court had made a series of horrible decisions since 2000, including:
- Bush v. Gore. In 2000, the results of the presidential election hung in the balance. At issue, in this case, was the recount in Florida and whether it should continue. By a 5-4 decision, the Court said that the recount requested by Al Gore should be stopped, which allowed Florida to certify results that favored George W. Bush and gave him the White House.
- Citizens United. This January 2010 decision essentially gave corporations free-speech protections. The 5-4 majority held that corporations should not be barred from contributing to political campaigns, less the government violated the First Amendment. Thus, money was free speech.
- Burwell v. Hobby Lobby. At issue, in this case, was whether “closely held corporations” should be treated differently than nonprofits with regards to offering coverage for 20 types of FDA approved contraceptives under the Affordable Care Act. The plaintiffs, in this case, argued that the Department of Health and Human Services had violated the business owners’ religious beliefs because the owners felt that contraception was immoral. On June 30, 2014, the court ruled in favor of the plaintiffs but said that the ruling only applied to closely-held corporations and contraceptives (as opposed to mandates requiring vaccinations and blood transfusions).
By the Way …
The Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission case was a 7-2 decision. The justices essentially punted the issue of gay rights for another day, but it remains to be seen if the issue of anti-gay discrimination will be directly challenged in the SCOTUS again and what the conservative judges will do if tasked with making a final ruling on such a case. I don’t have faith in them.
What Role Democrats Could Play
The Democrats will play no real role in these proceedings. While possible 2020 presidential candidates in Kamala Harris and Cory Booker have given Kavanaugh a hard time, all hopes of a real resistance were dashed immediately. Democrats had procedural options, like not showing up, because the Senate can only operate by law if over half of all Senators are present. However, it is clear that Republicans will break or defy any law, rule, or precedent to get what they want.
Anyway, talk of procedure is a moot point now that John McCain has died. He will be temporarily replaced by Jon Kyl, which gives Republicans 51 senators. Even before then, it was clear that Democrats would not do something so bold, especially when they have people like Joe Fucking Manchin gumming up the works and helping Republicans.
Just minutes after Trump announced his pick to replace Justice Kennedy, Senate Minority Leader Charles Schumer announced that he intended to vote against Kavanaugh’s confirmation and Schumer urged other Democrats in his caucus to do the same. Soon after, it became clear that the Democrats’ resistance against Donald Trump’s second Supreme Court pick was non-existent. Of course, certain Democrats — the usual suspects, including Manchin, Heidi Heitkamp, and Claire McCaskill — refused to maintain a united front on this issue.
When asked if Schumer could influence his vote, Manchin said that Schumer could kiss his “you know what.” (Great, Joe. You won’t stand up to the Republicans, but you can sure stand up to your leader. With “friends” like these, who needs enemies?)
Schumer quickly backed down. Gee, I wonder why. ($chumer’$ donor$ probably told him to $tand down.)
What We Need to Do with the Court to Avert or End a Constitutional Crisis
If the Democrats (preferably real progressives) do manage to take over Congress and take back the White House, they will need to pack the courts in order to stop the onslaught. Ultimately, the damage will not be done solely by the Supreme Court, but in lower courts, as well. In fact, more precedents will be set at the appellate court levels, but Democrats have actually helped Trump there, too.
While much of the focus has been on Trump filling the vacancy on the Supreme Court left by Anthony Kennedy, Senate Majority Leader Mitch McConnel was quietly working with Donald Trump to quickly fill appellate court vacancies. There is a total of 179 appellate judgeships in the United States, and Trump can appoint 20% of them when all is said and done.
The only thing that might serve as good news is the relatively slow pace at which McConnel was filling district court vacancies. At this point, Trump is behind Barack Obama and George W. Bush. However, by the end of August, Democrats helped McConnel fill even more district court vacancies in a deal that would fast-track 15 judicial confirmations.
What did the Democrats get in return? They got to go home, and they received a promise that a building would be named after the late Sen. John McCain. Aww …
WTF is this? Don’t you see why these Democrats piss me off?
Anyway, is there more we should do? Longtime, there are some solutions I would like to see implemented.
The Canadian System, Anyone?
A few months ago, David Doel compared the American Supreme Court system with the Canadian system and he explained how the latter worked.
I would prefer a system like this. Only qualified judges need to apply and these appointments would no longer be lifetime appointments.
Instituting Term Limits
Believe it or not, this was an idea floated by former Texas Gov. Rick Perry, who now serves as Trump’s Energy Secretary. When Perry ran for president in 2012, his website contained this suggestion for the Supreme Court:
A Constitutional Amendment creating 18-year terms staggered every 2 years, so that each of the nine Justices would be replaced in order of seniority every other year. This would be a prospective proposal, and would be applied to future judges only. Doing this would more the court closer to the people by ensuring that every President would have the opportunity to replace two Justices per term, and that no court could stretch its ideology over multiple generations. Further, this reform would maintain judicial independence, but instill regularity to the nominations process, discourage Justices from choosing a retirement date based on politics and will stop the ever-increasing tenure if Justices.
I could get behind this idea if it was seriously presented. In fact, I think it would be better than a 10-year term limit for judges. The point is there should be a term-limit for Supreme Court justices and there should be a greater focus on a judge’s qualifications for the court.
Getting Rid of Partisan Justices
Ultimately, this should be the aim. What we need are judges who will respect the law and to remain unbiased as possible while factoring in the general well-being of society, but it will take many years to get judges who are not beholden to a party or ideology. I don’t know if the United States has been so divided and partisan at any time in its history, but partisanship has filtered down into the judicial system because judges are being appointed by client-science deniers and corporatists. This has to end.
In order to get rid of partisan judges — or to at least curtail their partisanship — we need to find political solutions to our problems and keep as many out of the court as possible. That means we must strengthen our democracy and get more voters involved in the process of voting. If more people were satisfied with the political process, fewer fights will be taken to court and the Supreme Court would take less of an activist role.
In the Meantime …
Civil disobedience may be our only recourse. The Supreme Court could render more opinions that hurt workers, renters, the environment, etc., but can it enforce all of those rulings? Has the Court been able to enforce its rulings about gerrymandering? In many cases, states have downright ignored rulings from the highest court in the land and that is what U.S. citizens should do if and when the Court hands down unjust rulings against things like net neutrality.
So, if you didn’t figure it out by now, I don’t have much faith in our judicial system, let alone Congress. We have gotten to this point in large part because of toxic partisanship, so we need nonpartisan solutions to get us out of it. Until then, we wait with baited breath to see how far back this far-right SCOTUS will take us.
Yes, we all should think about court appointments when voting in the future. However, if and when Democrats assume the reigns of power again, they need to be willing to make bold moves that actually help their constituents and Americans at large. The Chuck Schumers of the world are not going to help us because they’re weak, they’re bought off, and they will always be sabotaged by their own weakness and shitheads like Joe Manchin.
Note About the First Image
The West face of the United States Supreme Court building in Washington, D.C. can be seen in this 2008 photograph. The original image can be used under Creative Commons Attribution-Share Alike 3.0 Unported. (I altered the image by cropping it, reducing the size, inverting the colors after making it black and white.)