As of July 9, when President Trump announces his next pick for Supreme Court Justice, the country will enter a news-induced state of constitutional angst.
It has already started. Just when the reasonable citizen may have been hoping to take the summer off from Trump Derangement Syndrome, Justice Kennedy decided it was time to resign. Thanks to the trend started by Harry Reid at the lower court level and continued by Mitch McConnell at the Supreme Court level (nuclear option), of Judicial appointments being decided by a simple Senate majority, Trump will likely get his candidate, and anxiety is growing.
The Supreme Court ended its session with some causes for concern. The so-called Muslim ban, the first round of outrage-inducing executive orders drafted by Stephen Miller, subsequently amended, was held to be within the Presidential prerogative. The court also ruled in the last week of June on a case that held that California crisis pregnancy centres do not have to inform women that they are entitled to state-funded medical procedures. Another case held that requiring government employees covered by union contracts, but who choose not to join a union, violated the constitutional protection on free speech. CNN pronounced that the Supreme Court had become an arm of the Republican Party.
Who Are the Candidates?
Trump appears inclined to exercise more restraint and take more advice on his Supreme Court picks than he does in his everyday decisions. He certainly wants to get the matter decided before the November elections in case the balance of power changes.
The worst-case assumption, since Justice Kennedy, though conservative, has voted with the so-called liberal Justices (Bader-Ginsburg, Breyer, Sotomayor and
Kagan) some of the time, is that the Justice who replaces him will be reliably conservative. The concern (of the more liberal half of the country) is that
victories won in the column of social justice issues such as women’s rights, voting rights and same-sex marriage will be reversed. Certainly, the evangelical right that has clearly sacrificed its principles (and credibility) in general in its support of Trump, is excited about a conservative majority on the Supreme Court.
Trump has said he will pick from a list of 25 that has been known for a while. Six of those prospects are women. Apparently, two of his top five list are women. Why
does gender matter? If the case in most people’s focus is that of Roe v. Wade, on abortion rights, the optics of having five men overruling three women would be terrible. So, the chances that Trump will pick a conservative woman (Amy Barrett and Britt Grant fit the bill) are high.
The jarring assumption underlying these fears is that justices are inherently biased in their approach to legal decisions by their political leanings. It is worth a detour – assisted by David Brooks of the New York Times – into the subject of what defines conservatism. Brooks’ article on June 25, 2018, considers the roots of conservatism in the wake of societal movements breaking away from monarchism during the 18th century to create order through a social contract based on reason. He observes that the defining difference between liberalism and conservatism is where each prioritises individual liberty versus order.
Conservatism prizes the sacred space – faith, family, community – that forms and gives purpose to the individual. This sacred space is threatened from all sides: from
the radical tendencies of revolutionary fervour to the overbearing instincts of the state. The enemy of the sacred space is radical individualism. Brooks’ conclusion is that, in political terms, the Republican Party in the US has left its conservative roots in favour of a market fundamentalism that worships economic goals that frequently threaten the sacred space by celebrating a winner takes all philosophy.
Trump, he argues, gained the support of those left behind by market forces by advocating for what seemed like a wonderful sense of conservative community – Make America Great Again. The reality of this community has proven to be different and Trump has simply continued a form of radical individualism based on tribalism.
Can It Really Be That Bad?
In considering what a conservative majority on the Supreme Court might mean, one might hope that the court is more cognisant of the sacred space Brooks talks
about. One might hope that the evolution of social mores that has occurred in the last thirty years has become part of a more broadly defined sacred space. One might hope that the court will not turn back the clock on abortion rights and voting rights.
The sense of where the sacred space is, what values it stands for and who is admitted, and present is, of course, of fundamental importance in understanding what
Brooks’ conservatism embraces. If the tent is not broad enough to include sufficient stakeholders, it will be labelled simply tribal. Those who are not inside will feel no sense of belonging. The legacy of decades of individualism – you do you – is that the self has been elevated over the community. Rather than freeing individuals from the oversight of courts and government, people have needed ever more recourse to the tribunals that arbitrate their disputes with other individuals asserting their supreme rights and claims.
It is typical for candidates for the Supreme Court during their confirmation process to say that their own personal views on the underlying subject of a case must take a back seat to legal precedent. This is disingenuous. As any law student knows, there is subjectivity and confirmation bias in selecting precedent and extracting legal conclusions from precedential cases. Personal views may be in the back seat, but they are still along for the ride. It will be an interesting summer.
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