Very tumultuous path ahead
6th conservative could tip majority for years to come
Washington An extraordinary four years of disruption, division and partisan warfare finds Republicans on the threshold of a dream decades in the making: a Supreme Court with a seemingly unshakable conservative foundation.
If Judge Amy Coney Barrett is placed on the court by the Gop-controlled Senate, President Donald Trump will have named a third of the Supreme Court and solidified a long-elusive 6-to-3 conservative majority.
One would have to go back to Richard Nixon to find a first-term president whose nominees have so reshaped its direction, and for decades to come.
That change is likely to mean a lower bar for laws that restrict abortion. It will bring higher scrutiny of gun regulation. The Affordable Care Act is on the docket again, and one member of the scant majority that upheld it in 2012 is gone. It will be a surprise if affirmative action and other race-conscious programs survive another challenge.
And whether the public continues to see the court as the government’s most functional branch is on the line as well.
Fate, and political hardball by Senate Majority Leader Mitch Mcconnell, R-KY., has presented Trump the chance to replace a legendary justice from the right, Antonin Scalia; the iconic leader of the left, Ruth Bader Ginsburg; and the man who for more than a decade occupied the pivotal spot in the middle, Anthony Kennedy.
The change has followed a calamitous path. Democrats claim Trump’s first appointee, Justice Neil Gorsuch, 53, occupies a “stolen” seat — Mcconnell refused to hold a hearing for then-president Barack
Obama’s nomination of Judge Merrick Garland to fill the 2016 Scalia vacancy.
The confirmation of Justice Brett Kavanaugh, now 55, was a wrenching, hard-to-watch drama that divided the nation over whether he assaulted Christine Blasey Ford as a teenager or was the victim of a left-wing smear aimed to keep him off the court.
And consider the current scenario: Barrett, the 48-year-old ideological opposite of the woman she would replace, could be locked in to her lifetime appointment days before — or after — her political benefactor, and his quest for a second term, is rejected by voters.
The justices testify endlessly that they put aside partisan impulses when they put on the robe. So the president did the court no favor when he said his political future might depend on getting his nominee confirmed.
It is difficult for the public to see the court as politically neutral “when a primary reason being given in favor of an expedited Senate confirmation hearing is ... so the new justice can be there in time to vote in a way that will ensure the re-election of the president who just nominated them,” said Richard Lazarus, a Harvard law professor who studies the court.
Trump’s calculations seem to put Chief Justice John Roberts Jr., nominated by President George W. Bush in 2005, in the side against him.
Roberts in the most recent term joined with the court’s liberals to strike a restrictive Louisiana abortion law, declare the administration had not followed the law in trying to abolish the program protecting undocumented immigrants brought to the United States as children and, along with Gorsuch, reject the administration’s view that federal anti-discrimination law does not protect LGBTQ workers.
But likely the most stinging for Trump was that Roberts wrote the opinions dismissing his claims that he had immunity while in office from complying with investigations by congressional committees and a New York prosecutor each seeking the president’s personal financial records.
But Roberts is hardly a liberal.
“The chief justice seemed to be guided last term by institutional concerns in particular in shifting to the left in some of the more contentious cases, but he has a conservative track record by almost any measure,” said Gregory G. Garre, who represented the government at the Supreme Court as solicitor general under Bush.
Predictions about the court are difficult until the results of the election are known.
And the election of Democrat Joe Biden and a Democratic Senate “would really accelerate and amplify the calls for reform,” Garre said, such as adding seats to the court to counter conservative gains.
Biden has said he is against that but he would face enormous pressure. Progressive activists say the court-packing already has been done, with Trump filling the seat that became open during Obama’s term and the president’s rush to nominate a replacement for Ginsburg even though voting in the presidential election has begun.
The unstable atmosphere might be reason for caution, at least initially.
“While the chief justice has seemed particularly sensitive to institutional concerns, it is likely that the court as a whole would be sensitive to concerns about an abrupt shift in jurisprudence as it transitions from the current vacancy,” Garre said.