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Trump’s big deal: the Supreme Court

June 30th, 2018


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November permitting, buying off evangelicals with nominations could change the future of America

Donald Trump regards himself as the great deal-maker. As president, there’s not an awful lot of evidence to support his contention but then he’s never much been one for being overly worried about the evidence. Nearly a year and a half into his term, there’s no wall, nor any realistic prospect of one, his immigration reforms have resulted in concentration camps for children separated from their parents, he’s started trade wars but failed to reach the renegotiated trade deals promised, and Obamacare remains in place. In foreign policy, his most striking intervention – the talks with North Korea’s Kim – has brought that regime out of the cold while getting little but warm words in return. Trump has delivered on tax cuts – but then passing tax cuts for the rich is easy for members of Congress when if you’re not one of them yourself, then your key donors most certainly are.

But there is one area where his administration has been extremely effective: in making appointments to the Federal courts. No president has appointed more federal appellate judges in his first year (12), to which he’s added a further 9 since and has another 13 pending before the Senate.

That’s in eighteen months: Obama only appointed 55 federal appellate judges in eight years. These are, of themselves, highly influential appointments given how few cases progress beyond their courts, and Trump’s nominees have been reliably conservative.

Even so, the Great Prize remains the Supreme Court, which is in many ways the most powerful institution in the United States: it is not accountable to anyone, appointments are for life, and whereas the Supreme Court can overturn or strike down an Act of Congress, Executive Order or lower court decision, nothing short of a constitutional amendment (or later Supreme Court decision), can overturn decisions made the collective apex of the judiciary.*

So far, Trump has only made one Supreme Court nomination, and that courtesy of Senate leader Mitch McConnell who refused to allow the Senate to hear Barack Obama’s nomination for the seat vacated by the death of Antonin Scalia. Scalia, however, was firmly on the conservative wing of the Court, so his replacement by Gorsuch didn’t tip the fine balance between liberals and conservatives (whereas had Obama’s nominee to replace Scalia, Merrick Garland, been approved, it would have produced a clear liberal majority).

By contrast, Trump does now have his own opportunity to mould the Court more to his liking – or perhaps more realistically, more to the liking of his electoral coalition. Trump himself would probably like to nominate someone who takes a highly activist view of the scope of Executive authority but there was a reason though why so many evangelicals voted for a man with little interest in either the Bible’s words or its teachings: abortion. Trump was once pro-choice but rare is the opinion with him that runs counter to his interests – and the votes of millions are very much his interests. They backed him because he said he would deliver on upholding a pro-life position (and pro-gun and other related stances, but abortion is the most important). And he is delivering: lots of young judges who will last decades, confirmed against regular opposition (and also overwhelmingly white and male). That is his Big Deal.

Which is where the retirement of Associate Justice Anthony Kennedy comes in. Unlike Scalia, Kennedy is as close to a swing vote as the Court has. Replacing him with someone reliably conservative would secure a narrow but firmer 5-4 conservative majority.

Replacing him, however, is not quite that simple. The Republicans have only a 51-49 advantage in the Senate and one of those 51 is John McCain who is both seriously ill (and hence often absent), and no friend of the Trump administration. Trying to tip the balance of the Court in such circumstances will be difficult, even with a highly qualified nominee.

That produces a tricky tactical decision. The Republicans are only defending nine of the 33 senate seats up for election and following the uptick in Trump’s rating, might reasonably hope to make gains, particularly if they can take attention away from DC. There’s potentially a good reason to delay the vote and use the Supreme Court nomination and abortion as the kind of practical wedge issue Karl Rove used so effectively for George W Bush – though going easy now in the hope of an easier ride later is a strategy that carries risks.

If the Republicans can retain and even strengthen their grip, that opens up their opportunity to change the country. There may well be two other Supreme Court vacancies coming up before long. Ruth Bader Ginsberg is 85 years old and while she has been clear in her intention not to step down any time soon, she’s also had periods of ill health in the past. Similarly, Stephen Breyer turns 80 in August and while he too has given no indication of wanting to retire, 80 is the recent average age at which justices have done so (though Justice Stevens retired in 2010 at the age of 90).

The crucial point, however, is that both Ginsberg and Breyer are on the liberal wing of the Court. If Trump and a GOP-controlled Senate can replace them (and Kennedy) with conservatives, not only will it produce a 7-2 conservative majority but if, as with Gorsuch, relatively young justices are appointed, it would likely mean a conservative majority into at least the 2030s and possibly well beyond: it’s not unreasonable to think that Gorsuch will still be on the Court in 2050.

    Such a court would have a huge impact on America’s politics, not just in civil matters such as potentially outlawing abortion but in curtailing the state’s (or, more accurately, Congress and the president’s) reach and overturning legislation such as Obamacare

.These are, perhaps, the stakes being fought for this autumn – far beyond the ins and outs of office, the soul of a nation is at stake.

If there is irony to be found in such a crucial thing, it’s this: for all the talk of Trump’s court appointments being his legacy, the reality is that he is little more than a willing cipher in it. The legacy is not his; it’s that of the evangelicals who from time to time insert and assert their influence into US politics (as with, say, the Prohibition movement). Nonetheless, irrespective of who is the impetus for these appointments, their impact – if the nominations are sustained at the current rate – will be profound.

David Herdson

* Technically, this isn’t quite true. Congress can alter the size of the court, so it could, in a hard stand-off, approve sufficient new justices of a given slant to render the former court outgunned. There’s also the accountability of impeachment, though only one Supreme Court justice has ever been impeached (in 1804), and he was acquitted. In reality though, neither of these mechanisms is likely to be effective as Franklin Roosevelt found when, at the height of his power in 1937 and with massive Democrat majorities in Congress, he didn’t have the support to expand the Court so as to reverse rulings against New Deal legislation.