Eletions Have Consequences: Supreme Court Edition

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.htmland 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 filibusteringhttps://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.