The Supreme Court's Divisive Future

An unpopular president under investigation for collusion is about to destroy the court's reputation.

Forgive me for talking about the US Supreme Court once again, but it can’t be overstated how historic and pivotal the next justice will be to the makeup of the court. It can’t be overstated, because the conservative bloc of the Supreme Court will be the focus of dramatic political tension in this country, tension that could snap.

Donald Trump is an unpopular minority president with no mandate to govern who operates as if he were president of the Republican Party, not president of the United States. Even as he’s under investigation for possible conspiracy with a hostile foreign power to win the presidency, he’s going to nominate someone for a lifetime job whose rulings will be consistent with the values of a minority of Americans.

Ronald Brownstein is the dean of demographic politics. For CNN, he said: “The court could be controlled by justices nominated and confirmed by a Republican electoral coalition rooted in the parts of the country least touched by the seismic economic, cultural and demographic changes reshaping 21st-century America.”

Brownstein added:

That points to a widening gap between the ideological perspective dominant on the court and the lived daily reality for a growing share of the country. In the past—as in the 1850s with slavery or in the 1930s with the New Deal—that disjunction has proved an explosive combination in American politics.

Remember the 2016 election was not about the future, but the past—specifically a way of life that’s disappearing. Some characterize that way of life in term of economics. Deindustrialization and globalization have hollowed out the great American middle class, especially in the Midwest. Some characterize that way of life in terms of race. The country is getting older even as it gets more diverse. America will be a minority-majority in a few decades. Trump’s victory was a last-ditch attempt to stop that.

I tend to believe both factors are at play, but this isn’t the time for that argument. My point today to make it clear that this new justice, as well as the newest justice, Neil Gorsuch, will reflect views and values of the past even as they are presiding over issues of the present. Here’s how William Galston of the Brookings Institution put it to Brownstein: "If you want a metaphor, in the scenario you are talking about, it is like two tectonic plates that are locked and trying to move in opposite directions.”

Most of us tend to believe the Supreme Court is not a political branch of the federal government. That’s false. I know it doesn’t seem that way. It looks neutral for the most part because it has over the last few decades handed down rulings that were more or less of equal measure. Some decisions favored conservatives. Some favored liberals. This was mostly due to departing Justice Anthony Kennedy, a conservative who sometimes sided with the court’s liberal bloc on so-called social issues, like gay marriage. As long as this equilibrium was maintained and apparent, most people most of the time figured the court was acting as honest broker and fair arbiter of the law.

That has already changed. The last session is a glimpse of things to come. With Gorsuch on the bench, the court ruled against voting and labor rights, and ruled in favor of political gerrymandering. Some high-profile Democrats already see which way the wind is blowing. US Sen. Chris Murphy, of Connecticut, said last month:

Chris Murphy@ChrisMurphyCT

Let’s call it like it is: the Supreme Court is turning itself into a political arm of the Republican Party. Weakening organized labor, upholding GOP gerrymandering, gutting voting rights laws.

June 27, 2018
That’s more significant that you might realize. Remember, as long as the court ruled in equal measure, or something approximating equal measure, it could credibly dodge such allegations. For Murphy to accuse five justices of turning into a GOP apparatchiks, something critical must be broken, something that once held back partisans from accusing the court of overt partisanship. Once this barrier is breached, other things become conceivable, expected, and even normal. We aren’t there yet, but there’s potential for the Democrats to question the court’s legitimacy.

The day before the July Fourth holiday, the Senate Intelligence Committee released a bipartisan report concluding that Russian President Vladimir Putin ordered a campaign of information warfare against the US to help Donald Trump win.

“The committee concurs with intelligence and open-source assessments that this influence campaign was approved by President Putin,” the panel said Tuesday in a report that endorsed as “sound” the intelligence findings issued in January 2017. The committee said there was a body of intelligence “to support the assessment that Putin and the Russian Government developed a clear preference for Trump.”

Seven days prior to the Senate’s report, Bloomberg reported that Special Counsel Robert Mueller is preparing to “accelerate” his probe into possible collusion between Trump and the Kremlin. Mueller’s team has “an eye toward producing conclusions—and possible indictments—related to collusion by fall.” To repeat: By the fall.

You know what else is happening in the fall? Two things.

One, congressional elections that might give Democrats the power to impeach and remove Trump. Two, Senate confirmation of a new Supreme Court justice.

Even if Mueller gets a grand jury hand down indictments, the Republicans will almost certainly confirm the next Supreme Court justice. Even if the Democrats win control of the Senate (a big if), the Republicans will follow through.

If the Republicans rush a nominee despite indictments and the will of the American people, the US Supreme Court will indeed face a crisis of legitimacy.

I said at the top that tensions could snap.

That was an understatement.


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