New SCOTUS Won't Check Trump's Power

The new conservative majority will affirm, deepen and expand it.

The era we just entered will be very different from the one we just left.

From the end of World War II until last week, the US Supreme Court was the place where we settled important questions, and came out (mostly) on the right side. It was where justice delayed finally won the day. It was where the river of American history flowed alongside liberal and righteous campaigns to create a more perfect union.

To be sure, the court has handed down outrageous and destructive rulings (Citizens United being just one), but rulings also broke in favor of liberalism, justice and democracy in sufficient number that liberals had good reason to trust it.  

That’s over.

With the retirement of Justice Anthony Kennedy, the Republican Party will try to undo everything it could not undo democratically. With the appointment of a justice who will reliably vote with the high court’s conservative bloc, the GOP will accelerate currents already in motion. They will contract the boundaries of democracy to exclude those “undeserving” of membership into the formerly great American franchise.

This is going to happen. Count on it.

As Ron Brownstein noted, the country will be living with legal rules written in 1950 until 2050. Here is what the new court will do, according to CNN’s Jeff Toobin:

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.

Hold this in your mind while I take you to Florida, where a 7-year-old Guatemalan girl was reunited with her mother after nearly two months alone in custody. The government forcibly separated her from her dad after they crossed the border, as part of an explicit effort to inflict suffering in order to deter future border crossings.

Look at her face. This should be a happy moment. It’s not.

While Janne Martin-Godinez is obviously relieved, look closer. See the doubt. Not doubt, see the knowledge. She now knows her parents cannot protect her, not when the full brunt of the United States government comes down on her tiny shoulders.

She will never again feel safe.

As a child of the 1980s, I believed with my entire being that the United States of America was a force for good. We liberated Europe. We defeated evil. After the Soviet Union collapsed, America once again led the way. We helped establish an international order in which laws ruled, human rights were sacred, and peace (usually) prevailed.

Yes, there were problems. We did not always live up to our ideals. Our own history is even more appalling. But I didn’t lose faith. Yes, the Cold War was destructive and the Iraq War was a cataclysm. Even so, we meant well, in meaning well, there was always hope for political reform, for serious progress, and for realizing our better selves.

Until last month, when I read stories about what in any other setting would have been called kidnapping, blackmail, and ransom, I did not believe the US government would act with evil intent. I believed our policies could result in suffering, but I didn’t believe suffering would ever be the point of such policy. But now my faith is shaken.

One of Kennedy’s last acts as a justice was being the deciding vote in upholding Trump’s ban on Muslims entering the country. This was an egregious ruling. Kennedy fudged it by saying he didn’t like it and hoped the president would reconsider.

Only a fool would expect such ambivalence from the next justice. The new Supreme Court will not stop Trump from doing whatever he wants to do. If the US government chooses to act with the intent of inflicting pain, if the administration says our national sovereignty depends on shattering the minds of 7-year-old girls, the court will not check his power. It was affirm, deepen, and expand it. It will codify evil.

It can’t be said enough:

The era we just entered will be very different from the one we just left.


Programming note

The Editorial Board will not publish July 4. Publication will resume July 5.