On July 6, 2018, four days before Donald Trump chose Brett Kavanaugh to be his second of three nominations to the United States Supreme Court, the then president promised the American people that his election judge would have nothing to do with it. with “judicial activism”.
“Judges are not supposed to rewrite the law, reinvent the constitution, or substitute their own opinions for the will of the people expressed through their laws.” Trump said, launching an implicit but unsubstantiated reprimand at the liberal judges. “We reject judicial activism and the formulation of policies from the court.”
But on July 1, 2021, Trump’s three elections for the nation’s highest court joined the other three conservative justices in issuing a majority ruling steeped in judicial activism. Opinion 6-3, drawn along sharply ideological lines, effectively rewrote the holy Voting Rights Act of 1965, the glory of the civil rights movement that guarantees equal access to the polls for American citizens of all racial groups. .
In the process, Kavanaugh, Neil Gorsuch, and Amy Coney Barrett and their companions substituted their own opinions for the will of the people. As Elena Kagan, one of the three liberal dissidents, put it in a searing rebuttal, the court’s right-wing majority had taken the Voting Rights Act, described by Lyndon Johnson, who enacted it as “monumental,” and reduced it “to your own preferred size. “
It was a dramatic climax to the first Supreme Court term that involved all three of Trump’s nominees. The newly constituted post-Trump tribunal seemed to be reinforcing the nightmare of all American progressives.
Through a combination of trick And relentless determination, the GOP leadership with the help of Trump had transformed the nation’s most powerful judicial panel from a finely balanced yet conservative arbiter into an enhanced engine of right-wing extremism. Would any of the pillars of modern American society erected in recent decades, from civil rights to LGBTQ rights, from access to abortion to the foundations of democracy itself, be safe in your hands?
However, since the 2020-21 period ended, an alternative and more complex analysis has emerged. When the totality of the court rulings in the 67 merits decisions it issued this year is considered, there was agreement between the conservative and liberal wings of the court in several cases.
End of term statistical report specialist news outlet Scotusblog tells its own story. About 43% of the cases were resolved unanimously, in rulings of 9-0 or 8-0, slightly below the average for the last decade, but slightly above the three most recent terms.
In contrast, only 15% of the cases, including the Voting Rights Act decision, were issued along strictly polarized conservative-liberal lines.
Analysts pointed to the court resounding rejection the latest Republican attempt to bankrupt “Obamacare,” the Affordable Care Act, as evidence of an unexpected degree of left-right competition. In that case, only the staunchly ideological Samuel Alito, whose voting record is the most consistent supporter of all conservative judges, disagreed.
They also pointed to the 8-1 ruling that endorsed a high school cheerleader who had been kicked out of her squad after she profaned about it on social media. And there was the unanimous decision against the NCAA, the regulatory body for student athletes, for its prohibition on colleges from offering benefits to players despite the huge revenues that college sports generate.
Such signs of harmony among ideologically divided members of the post-Trump court encouraged some prominent lawyers and commentators.
David Cole, the influential national legal director of the American Civil Liberties Union, who won the cheerleaders case, saying: “I think we at the ACLU can breathe a sigh of relief to some extent; it’s not as bad as people thought.”
But as the dust settles over the period, awareness grows that the dominant cadre on the right might be biding its time. Of Trump’s three picks, Gorsuch is 53, Kavanaugh 56 and Barrett 49, and with no retirement age to worry about, they potentially have decades of failure ahead of them.
“I think they are playing a long game,” said Aziz Huq, a law professor at the University of Chicago. “In the long run, laying the groundwork and moving incrementally often pays off.”
Taken as a whole, the court’s record on this term has consistently veered in a rightward direction. It is true that in some cases conservative magistrates took small steps when they could have made great leaps, but their trajectory was not in doubt.
“What is clear from the term is that the court is indisputably conservative,” said Elizabeth Wydra, president of the progressive Center for Constitutional Responsibility. “There have been some cases of consensus, but to me they are exceptional and not an indication that this is a more moderate court.”
Huq similarly warned American liberals that any hope they might have of having dodged a bullet was premature. “This is one of the most conservative supreme courts the United States has ever seen,” he said.
The professor pointed to the Cedar Point Nursery Policy, in which conservative judges, voting en bloc, struck a blow to union rights and at the same time expanded the property rights of landowners. The case had been brought by farm owners who objected to organizers entering their fields to recruit farm workers.
In the Cedar Point ruling, most broke a 1976 California law that had been the jewel in the crown of Cesar Chávez’s historic campaign to empower farmworkers. The six conservative judges held that the existing law allowing unions to go into the fields to organize workers had violated the constitution’s “expropriation clause”, which prohibits the government from taking property from someone without compensation.
The court’s decision represented an extraordinary break with past precedent. It was judicial activism in action.
Huq points out that the radical and destabilizing idea embodied in this ruling – that federal law could not in this case compel landowners to grant union organizers access under the “expropriation clause” – affects one of the most essential elements of any fight against discrimination. legislation. That’s the concept, applied for decades, that no one can stop someone else from entering your property, be it a rented home or a workplace, on discriminatory grounds.
“This is something that could unravel much of the anti-discrimination laws enacted by national and state governments since the 1960s,” Huq said.
Conservative justices insisted that the Cedar Point case was different and that they had no intention of applying it generally. But the limitations they imposed on their own opinion were so arbitrary that they potentially invited future litigation.
“This ruling may seem limited, but it is extremely fragile and could fail in future cases,” Huq said.
A similar deceptive restraint can be seen in one of the big religious freedom cases heard in the face of Trump’s third election, Catholic Judge Barrett, who joined the court last October. In this case, the court allowed a Catholic foster agency in Philadelphia to reject same-sex couples as foster parents on religious grounds.
Some commenters chose to paint failure in an optimistic tone, highlighting its unanimous nature and the fact that the court, to the dismay of defenders on the right, decided not to delve into the broader question of whether religious believers have a constitutional right to discriminate against the LGBTQ community. But for Wydra, the message was transparent.
“The court has given a clear signal to those who want to raise religious freedom objections to laws protecting LGBTQ rights: it will consider those claims favorably,” he said.
Nowhere were the colors of the new Trump court more vividly displayed than in its annihilation of voter protections.
At a time when Republican state legislatures across the country are promoting hundreds of measurements To suppress the vote, especially in black and Latino communities, the ruling is one more threat to the health of American democracy. The alarm sounds as the supreme court prepares for a new term in October in which it will hear potentially seismic cases on abortion rights and gun laws.
Trump can claim that he is an enemy of judicial activism. But the supreme court that shaped his own image seems to be quite open to the idea, and it may just be getting started.
George is Digismak’s reported cum editor with 13 years of experience in Journalism