Before Trump’s meteoric (yet all too avoidable) rise, and his victory on the “technicality” of the electors’ votes in the Electoral College, even though he had gotten three million fewer votes than his opponent, the Republican party led by Senate Majority Leader Mitch McConnell had succeeded in an apparently minor “coup”—one which now, given the retirement of US Supreme Court Justice Anthony Kennedy, the moderate-leaning “swing vote,” might prove to be even more damaging for the political fate of the country than Trump himself.
The unconstitutional move by the Republicans, whose devastating effectiveness has only been made fully clear today, took place in February 2016, when, at a ranch in Texas, Antonin Scalia, the arch-conservative Italian-American judge who had been the main ultra-reactionary voice on the highest US court for a generation, died suddenly of a heart attack.
The Republican leadership immediately announced it would obstruct any appointment of a replacement by Barack Obama to the bitter end. Although the Constitution grants to the president the role of appointing the magistrates on the Supreme Court, and in spite of the fact that Obama had 10 months left in his second term, McConnell announced that the appointment was too important to be left to a president who was going to be replaced, and that “the American people should decide” in the next presidential election.
This scheme proved crucial when Trump ended up winning the election, while the Republicans denied any hearing for the candidacy of Merrick Garland, the moderate judge proposed by Obama, for 10 full months.
Indeed, one of Trump’s first acts as president was to nominate the reactionary Neil Gorsuch to the highest legal body of the nation.
Gorsuch replaced Scalia’s vote, and with the nine-member Supreme Court having four “conservative” and four “liberal” judges, the decisive tie-breaking vote most often still belonged to Anthony Kennedy, a moderate nominated by Reagan, who has spoken out over the years against gun control and in favor of the influence of corporations on politics, but who has also signed majority opinions in favor of abortion and gay rights.
Due to its design in the country’s constitution, the Supreme Court has a powerful influence on political life. Its judgments have been instrumental in all the major phases of social progress, from universal suffrage to union power, the integration of schools, environmental protection, and the civil rights of blacks, women and gays.
The court has a strong role in controlling and moderating governmental power, and it is the keystone of the system of checks and balances set up by the Constitution as an institutional barrier to the enormous power wielded by the president.
For instance, at the beginning of Trump’s term, the Court exercised this function by blocking the direct repeal of Obama’s healthcare reform.
However, in the last few days, a barrage of new decisions have decimated a number of fundamental safeguards.
In rapid succession, the judges upheld the right to conscientious objection of a baker who had refused to prepare a wedding cake for a gay marriage; they pronounced the validity of a map of electoral districts drawn by Republicans for their own political advantage in Texas; they deemed illegal the requirement for pregnancy centers to offer information on abortion in California; they struck a severe blow against the financing of trade unions; and, finally, they approved Trump’s signature “Muslim ban.”
It was an avalanche of bad news for the left, which culminated with the frightful news of Kennedy’s retirement, which opens the door to a second appointment by Trump.
The new judge that the president will appoint will certainly consolidate a reactionary supermajority that will go on to dismantle welfare, “affirmative action” (quotas reserved for minorities in schools and workplaces), gay rights, abortion rights—the whole catalog of the cornerstones of social law in the U.S. for the past 50 years, something that not even the most optimistic of conservatives would have dared to hope just two years ago.
It is a crucial assist to Trump himself. He will have total control of all the powers of the state, to an extent that his predecessors have almost never been able to enjoy, and which will now make it much easier to defeat the last bulwark against his power: the rulings of the federal courts against him—like the decision Thursday which ordered the reunification of all the immigrant families separated by Trump’s policy within one month—which will almost certainly be struck down on appeal.
As analyst Jeffrey Toobin said, “abortion will be illegal 20 states in 18 months,” and the history books will mark this as a turning point.
In less than two years, the political party that lost the popular vote has managed to completely take over all three branches of government, and it will shape the political fortunes of the United States for decades, since Supreme Court appointments are for life.
It is a checkmate move against the opposition, which leaves no room for any resistance except to try to overthrow them at the ballot box—a road now entirely uphill.
Subscribe To Our Newsletter
Your weekly briefing of progressive news.