The spectre of a conservative Supreme Court is a fantasy3rd May 2018
On a July day in 2016 the soon to be President of the United States, Donald Trump, was campaigning in Cedar Rapids, Iowa. His electoral chances seemed dire, and the Republican nominee was all too aware of his unpopularity, even among die-hard conservatives. His response to them was simple: you don’t need to love me, but you still need to support me. “If you really like Donald Trump”, he proclaimed “that’s great, but if you don’t, you have to vote for me anyway. You know why? Supreme Court judges, Supreme Court judges. Have no choice, sorry, sorry, sorry. You have no choice.”
It was an argument that seemed too hard to deny. Antonin Scalia, the court’s champion of conservative jurisprudence, had died in February, and for the first time since 1971 the possibility of a majority liberal court loomed. To committed Republicans the prospect was disheartening to say the least, heralding an America with more abortions, fewer guns, and ever greater federal overreach.
There was, however, also the scent of opportunity in the air: the court’s liberal wing was getting old. Ruth Bader Ginsburg, now 85, had undergone treatment for colon cancer in 1999 and pancreatic cancer in 2009. Her colleague Stephen Breyer was now 78. And Anthony Kennedy, the one-time conservative who was shifting ever closer to the centre, had reached 81; by November rumours had begun to swirl that he was ready to step down to spend more time with his family. As Trump toured the country, there was the sense more vacancies on the court would soon follow. While the bench might turn liberal, it could equally easily be rendered conservative for a generation. That was, of course, if Donald Trump won the election.
To committed Republicans the prospect of a liberal court was disheartening to say the least, heralding an America with more abortions, fewer guns, and ever greater federal overreach.
What once seemed impossible happened and President Trump was inaugurated on January 19th 2017; the Republican fantasy of a conservative court appeared ever closer to reality, especially with the appointment of committed conservative Neil Gorsuch to replace the late Scalia. Some among them begun to air a cautious optimism; as one aide told Vox editor Ezra Klein “if we get Gorsuch and avoid a nuclear war, a lot of us will count this as a win.” Liberals have panicked: legal scholar Scott Lemieux proclaimed ‘A rightwing supreme court could be Donald Trump’s most insidious legacy’. They shouldn’t be so worried: the GOP’s narrative once went that even if Donald Trump can’t govern for conservatives, he can appoint justices who can judge on their behalf. This rhetoric appears increasingly hollow, and the vision of a court of conservatives may be dead.
The history of the court suggests that even if Trump appoints his favourite justices, they may stray towards the very liberalism he regularly abuses. Harry Blackmun was appointed by Richard Nixon, John Paul Stevens by Gerald Ford, David Souter by George H W Bush: all conservative justices and all chosen by Republican presidents. By the end of their careers however, the three were liberal heroes, with Blackmun authoring perhaps the court’s most famous modern opinion in Roe v. Wade, the landmark case liberalising access to abortion.
Even if the court’s judges remain solidly conservative, however, they can still produce the occasional surprising decision. Clarence Thomas, the court’s most fanatical conservative, recently helped strike down an attempt to suppress black voters in North Carolina, while Neil Gorsuch is now facing Trump’s criticism after rescuing the liberal justices in their attempts to strike down a vague immigration law. Sometimes such defections can be transformative; when Obamacare, the central prop to the US healthcare system seemed fatally threatened, the Chief Justice John Roberts saved it, and when the court found a fundamental right to same-sex marriage, it was Anthony Kennedy who authored the 5-4 opinion. Roberts’ court is concerned with how the world looks upon it, and the chief justice is keenly aware of the shadow of history looming over him. The reputation of his bench is vital to him. Even if Trump appoints a consistent hardliner, he has no guarantee that the rest of the court would not shift in response, fearing a legacy that will go down in infamy.
The fantasy of a court of conservatives may be dead
This however assumes that Donald Trump will get to appoint a new justice. In fact, he may never get so far. With the miraculous election of a Democratic senator in Alabama, the Senate sits on a knife-edge of 51-49 in the favour of the Republicans. But with Trump’s unpopularity and Robert Mueller’s ever-present investigation, he may find that the 2018 midterms rob him of the majority needed to confirm justices. Election victories which once seemed like a Democrat pipe-dream are now in the realm of the possible, as former red states such as Arizona, Texas and Tennessee continue to produce polls that suggest a Republican majority may be under threat. If the Democrats do recapture the Senate, they have the perfect opportunity to play dirty and refuse to fill any vacancies with Trump’s favoured picks.
When Mitch McConnell the GOP’s Senate majority leader, delayed the appointment of moderate Merrick Garland for over a year, eventually to be replaced by Neil Gorsuch, he justified the unprecedented move on the basis of an impending new election. With two years to go after the midterms, and a deadly serious inquiry into Donald Trump’s business dealings and personal affairs, the Democrats can be perfectly stubborn without too heavy a charge of hypocrisy, armed with a ready-made explanation for the American public: if the reasoning was good enough for the GOP, why shouldn’t it work for the Democrats too? The Republicans haven’t got many of the legislative achievements they once hoped for under President Trump; soon they may find themselves without the judicial ones either.