Barring an outburst of courage on the part of two or three moderate Republican senators, taking lawsuits “all the way to the U.S. Supreme Court” soon will become anti-climactic because the outcomes will be fully predictable; move along barristers, no surprises here.
The departure from the court of swing vote Anthony Kennedy, dreaded by liberals and relished by conservatives, likely ensures that for at least a few decades the court will be ruled by a bloc of five hardline conservatives posing as constitutional originalists but acting as judicial representatives of the far right.
The five quickly will be asked to roll back many of the individual rights and protections provided to Americans in the last four decades and, based on their expressed views, will be inclined to do so.
It no longer matters whether the eldest of the liberal minority of four — Ruth Bader Ginsberg (85) and Stephen Breyer (79) — hang on for whatever remains of Donald Trump’s incumbency. In all likelihood they will be out-lasted by the five conservatives (all 70 and under). Even a Democratic takeover of both the Senate and the White House in 2020 could not ease the long-term grip of the five unless unexpected vacancies arose.
Only one sequence of events can prevent judicial discretion from being replaced indefinitely by ideological reflex. That would be two or three Republican senators refusing to vote for Trump’s first ultra-conservative nominee and the handful of Democrats from red states holding firm as “no” votes despite the personal risks to their careers.
Senate Majority Leader Mitch McConnell is desperate to force a vote before the November mid-term election for fear he might lose his 51-49 majority. Rushing to a vote will require another McConnell act of unblushing hypocrisy. When conservative justice Antonin Scalia died in 2016, McConnell pompously insisted that “the voters should decide” on a successor, not President Barack Obama, so it would be only right and proper to delay a vote until after the election. He even refused to allow any hearings, an unprecedented lack of senatorial comity.
By acting courageously, a few senators could force Trump to set aside the list of originalist candidates handed to him by The Federalist Society and nominate a more middle-of-the-road person; perhaps even a potential swing vote to reprise the moderating role frequently played by Kennedy for thirty years.
Of course Trump has a great deal more than his legacy at stake in his choice. Selecting a fair-minded, independent justice would not be in the best interest of a president who soon could find himself with major issues in front of the court, such as whether he may ignore a grand jury subpoena or pardon himself. But without a Senate revolt, Trump will be picking his potential judge.
More broadly, in a republic based on majority rule, only the Supreme Court ensures individual rights and equality for all citizens no matter their state of residence. But when a cemented majority of the court is prepared to reconsider, under flimsy originalist rationalization, any rights recognized for decades by their predecessors, that promise of individual liberty is hollow.
In six of the last seven presidential elections, more people voted Democrat than Republican. When more than half of Americans realize that they are losing such rights as one person-one vote, freedom to marry anyone they choose, ability to control reproductive choices, and equal access to education, and that there is no possible redress, only bad things can happen.
Davis Merritt, Wichita journalist and author, may be reached at firstname.lastname@example.org.