In this century, the Court has outdone itself when it comes to dismal jurisprudence. Bush v. Gore decided a presidential election by a 5-4 vote of justices who ignored the proscription that the Court does not involve itself in political questions (what’s more political than electing a president?). Citizens United opened the floodgates of billionaire and corporate money to buy elections. Shelby County emasculated the Voting Rights Act of 1965 and gave Republicans the go-ahead to engage in unfettered voter suppression designed to steal elections.
Now the Court is poised to make even more conscience-shocking decisions by the addition of yet another reactionary judge. Trump and his chief legislative executioner, Mitch McConnell, are once again (see Merrick Garland) pilfering a Supreme Court appointment that will skew the Court even further to the hard right.
Forget the naked hypocrisy of such an appointment only a few weeks before a presidential election. McConnell and his partners in crime championed what they labeled a holy writ in 2016 when Justice Antonin Scalia died more than nine months before a presidential election, namely that the voters should decide who should have the right to name a new justice. It would be unseemly, said McConnell and his fellow travelers, to allow a sitting president to make such an appointment in an election year.
What was unseemly then is perfectly seemly now, say Mitch and the Mitchspittles. So, it is highly likely that the Court will get its new justice either before November 3 or shortly after an election that may result in a new president-elect and a new U.S. Senate controlled by the other party. And there is nothing the Democrats can do about it. The filibuster no longer applies to Supreme Court nominations. It now appears that only two Republican Senators will join their Democratic colleagues in opposing the nomination. Democratic threats to “pack” the Court and get rid of the Senate filibuster completely are hollow. The Republicans live only for the moment, their sense of history being limited to locking in a right-wing Court majority for decades.
At the Constitutional Convention, James Madison, the chief intellectual architect of the Constitution, viewed the legislative branch as a “fence” that would surely restrain a madman, maniacal, authoritarian president from running roughshod over the nation. “Checks and balances” built into the foundational document, he was convinced, would assure that Congress would rein in a corrupt, runaway executive. Unfortunately, Madison failed to consider the possibility of an obsequious Senate Majority Leader who cared not at all for defending Congress’ legislative prerogatives against presidential usurpation and who was willing to be a doormat for an unconstrained president contemptuous of constitutional boundaries.
If the new justice is seated in early November, she will take part in oral arguments about the future of the Affordable Care Act on November 10th and will likely vote along with at least four of her right-wing colleagues to deep-six it, including pre-existing condition protections. Don’t believe for a minute that Trump’s recent empty executive order pledging (falsely) to protect this essential benefit is anything but a bogus, panicked attempt to delude voters into believing that he is suddenly on the right side of an issue he has spent his entire presidency opposing.
So this is where we are today. Republicans will push the Court further rightward, render moot Chief Justice John Roberts’ occasional inclination to cast a swing vote in favor of justice, and enable the stripping away of the remaining laws that protect Americans from the depredations of unchecked reaction. At risk will be Roe v. Wade and a woman’s right to control her own body (Republicans espouse a selective version of “right-to-life” that ends at birth), the right of all eligible Americans to vote, and everything else that the advancing arc of history has accomplished to improve our lives.
September 25, 2020