What’s at stake in court battles

With Brett Kavanaugh, Donald Trump gets his second Supreme Court pick in less than two years in office. Of course, this is partly because the first pick came after Republicans in the Senate refused to even meet with President Obama’s choice for the court just because they didn’t feel like it.

A lot of attention has been placed on the possibility of Roe v. Wade being overturned by a court veering to the right. This could happen, though there would likely be an uprising if it did. Polls show the highest level of support ever for Roe, more than seventy percent.

But there is more at stake for the court than reproductive rights. This is already a very right-leaning court. The perception of Anthony Kennedy as a moderate is mostly mythology stemming from his having been the swing vote on a handful of decisions, particularly those affecting gay rights. First, a little background. For the past thirty years, Republican presidents have been appointing justices who, not so long ago would have been considered well outside the legal mainstream. Reagan got some pushback with Robert Bork, who in addition to his role in Watergate, seemed poised to undermine civil rights laws.

But, it didn’t stop there. Soon we had Chief Justice Rehnquist, who had tried to prevent Brown v. Board of Education from being decided when he was a clerk. Civil rights laws have been under attack in recent years and the Roberts court has already gutted enforcement of the Voting Rights Act, leading to increased voter restrictions targeting minorities.

George W. Bush ended the role of the Bar Association in screening judges and we have increasingly seen less qualified and more extreme nominees from Republican presidents. Ironically, at the same time, they have convinced many Americans that their preferred justices are adhering to the constitution strictly, while others are simply making their own laws. One could argue that nearly the opposite is true as the court has made unexplainable decisions such as Bush v. Gore, Citizens United, and more recently, the Janus decision, overturning decades-old precedent in order to gut public sector unions.

If you want to know what to expect in a court with two, or perhaps three Trump appointees, simply look to the unusual interpretations of the law being put forward by far right advocates. Until recently, these have not been taken seriously, but they could soon be the law of the land.

We have already seen that civil rights are in jeopardy and the recent Colorado baker case shows that the court is willing to bend over backwards to justify discrimination if one simply uses religion to justify it. There are more cases forthcoming and this is a longstanding strategy, not only with sexual orientation, but with gender and race as well. If you say your religion requires you to discriminate, you may win, even if you are a business serving the public.

Another argument may get more credence soon, that the idea of personal liberty should overrule antidiscrimination laws. Under this theory, one’s first amendment right of freedom of association includes the right to discriminate, including in businesses open to the public.

Then, we have voting rights, already under attack. Novel interpretations of the fourteenth amendment aren’t taken seriously now, but soon, the court might well consider that it doesn’t grant citizenship to Americans born here, as it actually says.

Some jurisdictions are already arguing that in their redistricting efforts, they should count only citizens, or adult citizens eligible to vote, rather than all people. This is being done purely for partisan advantage, but the court may soon take it seriously.

Not long ago, Republicans argued that we didn’t need strong campaign finance laws as long as we have full disclosure of contributions. Already, most of those laws have been undermined under the bizarre and reality-ignoring notion that money is the same as speech and disclosure laws are nearly gone as well. Dark money is already influencing politics; expect more.

Because Republicans filibustered President Obama’s nominees more than any other in history — in fact, almost more than all others in history combined — Trump has already had an outsized influence on the federal judiciary. If Republican senators can plausibly argue that Merrick Garland shouldn’t even get a hearing for no reason at all, then it shouldn’t be that difficult for the Democrats and whatever remaining Republican moderates still exist to say that a president under investigation for crimes that call into question his very legitimacy in office shouldn’t get to make multiple, history-changing appointments.