Supreme Court with no taste for checks, balances may get worse

WASHINGTON » Our constitutional system of “checks and balances” only works if those in a position to operate the levers of checking and balancing do their job. It is clear that a Republican Congress and Republican appointees to the Supreme Court have no taste for such work. For the moment, President Trump is mostly unchecked and unbalanced.

It is equally clear — on Trump’s travel ban but also on issues related to voting rights, labor rights and gerrymandering — that the Republican Five on the nation’s highest court have operated as agents of their party’s interests.

And now things stand to get even worse because of Justice Anthony Kennedy’s retirement. He was, at least on some occasions, a moderating force. His replacement by another conservative hard-liner in the mold of Justice Neil Gorsuch would give right-wing interpretations of the law free rein.

This court’s direction was troubling enough with Kennedy there. On the travel ban, the majority that included Kennedy discounted the obvious (practically every word Trump has said about Muslims) to make a decision based on a rather absolutist view of presidential power, about which they were skeptical when Barack Obama was president.

The majority’s shameless ratification of a racial gerrymander by Texas’ Republican Legislature, wrote Justice Sonia Sotomayor in dissent, demonstrated its refusal to enforce the “right of equal opportunity.”

And on Wednesday, in what might be seen as a companion to the Citizens United decision that enhanced the influence of corporations on our political life, the majority voted to undercut organized labor’s ability to fight back, tossing aside 41 years of settled law and crippling the broader labor movement.

Justice Elena Kagan wrote in dissent: “There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law — and in its economic life” simply “because it wanted to.” That’s judicial activism.

So what’s wrong with all these 5-to-4 partisan decisions? Well, there’s the Republican majority in the U.S. Senate not even permitting a vote on President Obama’s nomination of Merrick Garland to the court, allowing Trump to fill the seat with a Republican. Every 5-to-4 conservative decision is (in the parlance of judges) the fruit of a poisonous tree of unbridled partisanship.

But the other problem with 5-to-4 rulings was outlined by a distinguished jurist. “I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions,” he said. “Politics are closely divided. … There ought to be some sense of some stability if the government is not going to polarize completely.”

Chief Justice John Roberts said this in 2006. And he’s right: The court he leads is contributing mightily to polarization.

A profound mistrust of the court will only be aggravated by the contrast between its decisions on a baker not wanting to sell a wedding cake to a gay couple and on the travel ban.

In the first, involving Christians, the court went out of its way to protect religious liberty. In the second, involving Muslims, it went out of its way to insist that religious liberty concerns didn’t apply.

Civility shouldn’t stop opponents of a right-wing court from doing everything in their power to keep the judiciary from being packed with partisan ideologues.

There’s nothing civil about rushing a nominee to replace Kennedy before the midterm elections. And no rule of civility demands the confirmation of justices who would leave an abusive president unchecked and use raw judicial power to roll back a century’s worth of social progress.