Elections Have Consequences: Supreme Court Edition
By
Chris Johnson
In
case anyone needed convincing, the week of June 25 showed all of us that the President’s
power to appoint Supreme Court justices, and the Senate’s power to confirm, can
leave an imprint on this country that lasts far beyond the end of the terms of
the President or any of the Senators involved.
During that one week, the Court issued decisions that upheld the third
version of President Trump’s thinly-disguised Muslim travel ban, and that
seriously restricted the ability of public sector unions to fight effectively
for the rights of workers. It is
arguable but likely that neither of those cases would have been decided the
same way if Merrick Garland, President Obama’s pick for Justice Antonin
Scalia’s vacant Supreme Court seat, had not been blocked by Senate
Republicans. The week was capped off by
the resignation of Justice Anthony Kennedy, a conservative justice who voted
with the majority in those two decisions but who also had been the swing vote,
siding with the more liberal bloc on the Court, in several landmark cases over
the years. Kennedy’s resignation
potentially gives President Trump and the Republican-controlled Senate yet
another bite at the Supreme Court apple.
Kennedy resignation and
replacement
At
just about any other time in history, progressives and liberals might be joyful
about Justice Kennedy’s departure from the Supreme Court. We will remember him for, and be grateful
for, his pivotal swing votes on issues such as same-sex marriage, abortion and
the death penalty; but he in fact voted with the conservative majority in far
more than 50% of cases during most of his career on the Court (see https://www.washingtonpost.com/graphics/2018/politics/supreme-court-2017-term/?utm_term=.2a98a2c64cad),
including every year of his tenure except the three terms from October 2014 to
July 2017. In the 2017-18 term alone, he
voted with the conservative majority – and the Trump administration – on the
travel ban, union rights, immigrant detention, abortion, voter registration,
the DC gun ban and other issues.
And this is NOT any
other time in history. This is the time
in history when a backbone-less Congress is marching in lockstep with a
President who now appears to be less a hostage of the far right than its
emperor. His chosen
appointee, Judge Brett Kavanaugh, when (if?) he gets a Congressional hearing,
will say all the right things about respecting precedent and deciding each case
that comes before him on its own facts, and will refuse to say anything
substantive on the basis that it could be seen as improperly pre-judging a
matter that could come before him. He is
already ON record, though, with opinions in cases that came before him on the
Court of Appeals for the D.C. Circuit, as (among other things) favoring
restrictions on abortion; being skeptical of executive agencies’ regulatory
power; being sympathetic to religious challengers in Free Exercise cases (Hobby Lobby); and finding that
semi-automatic rifles are constitutionally protected. See https://www.cnn.com/2018/07/09/politics/kavanaugh-on-the-issues/index.html
and https://www.nytimes.com/2018/07/10/us/politics/brett-kavanaugh-abortion-guns-environment.html.
Democrats
and independent progressive groups have pledged to use every tool at their
disposal to slow or stop the process. WE
CAN HELP. Here are some ways:
·
Call voters in Maine (8 a.m. to 8 p.m. Central
time, https://www.openvpb.com/vpb_bycode/D57572P-269862)
and Alaska (noon to midnight Central time, https://www.openvpb.com/vpb_bycode/4A8572C-883647),
and encourage THEM to tell Sens. Collins (Maine) and Murkowski (Alaska) to
oppose this nomination.
·
Call our Sens. Durbin (202-224-2152 or
312-353-4952) and Duckworth (202-224-2854 or 312-886-3506) and urge them (a) to REMAIN STRONG
in their opposition to voting on the nomination until after the November 6
election; (b) to insist on release and review of all 1,000,000+ pages of Kavanaugh’s
White House documents before any hearing is held; and (c) to support procedural
measures including –
o Slowing Down the Senate through withholding consent and
filibustering: https://www.indivisible.org/resource/senate-withholding-consent-filibustering/
o Shutting Down the Senate by either depriving the Senate
of a quorum or threatening to ‘break a quorum”:
Janus v AFSCME decision
The plaintiff in Janus v
AFSCME was an employee of the Illinois Department of Healthcare and Family
Services and a non-member of his public sector employee union. He objected to paying the “fair share” of
union dues that Illinois (and 21 other states) allowed unions to collect from
non-members to cover the costs of negotiating collective bargaining agreements
that benefited both union members and non-members. Under a prior line of Supreme Court
decisions, the “fair share” payments were upheld, as long as those fees were
used only for collective bargaining costs and not for the unions’ political
activities. Janus argued, in essence,
that the union’s failure to take Illinois’ fiscal crisis into account in
negotiations for higher wages and benefits constituted a political position
with which he did not agree. The
five-judge conservative majority ruled in his favor, announcing that the
collection of “fair share” fees violated public sector employees’ First
Amendment rights. Read more, including
some unions’ plans to regroup following Janus,
at https://www.theatlantic.com/politics/archive/2018/06/janus-afscme-public-sector-unions/563879/.
Trump v Hawaii decision
In upholding the third version of Trump’s travel ban, the
five-judge conservative majority agreed with the administration’s argument that
the countries named in the ban had flawed vetting processes, thus creating a
national security issue when persons from those countries enter the United
States. The Court applied the “rational
basis” standard – the lowest level of scrutiny for a Constitutional question –
and determined that the administration’s argument was not totally divorced from
fact, and that the ban decision was within a president’s discretion. Although the majority made note of Trump’s
history of anti-Muslim comments, it found that because the executive order did
not mention religion, and because the order did not affect Muslims traveling to
the United States from other countries, the executive’s inherent authority
overrode the significance of statements that Trump had made in different
contexts. Read the full opinion at https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf.
