Donald Trump's impact on US Supreme Court could reverberate in American politics for a generation

Trump will go down in history as the Republican president who fulfilled his party’s perhaps greatest agenda, one that was thirty years in the making

Utkarsh Shalla January 20, 2021 21:48:35 IST
Donald Trump's impact on US Supreme Court could reverberate in American politics for a generation

Donald Trump watches Justice Clarence Thomas administer the oath of office to Amy Coney Barrett. AP

As every US president leaves office at the end of his term, the elephant in the room is always the question: how consequential has he been as the head of the US executive? In the context of President Donald Trump, the answer to the question is less transparent and needs a more nuanced perspective in categorising his ‘legacy'.

Regardless of the astonishing nature of Trump’s divisive rhetoric, a consequence of which was the Capitol Hill attack on 6 January, his politics will eventually fade into memory; his tweets will be lost in the dumping ground of the internet, and his executive orders will be reversed by those of future presidents.

But his impact on the Supreme Court of the United States (SCOTUS) will reverberate in American politics for at least a generation.

The third branch is often overlooked due to the publicised coverage of Congress, the legislature, and the President, the executive, but SCOTUS has actually been equally consequential in the American political system. In fact, it has determined a presidential election outcome (Bush versus Gore), provided corporations potentially unlimited access to political power (Citizens United versus FEC), and even asserted the legality of abortion based on the constitutional right to privacy (Roe versus Wade). Needless to say, by virtue of its incontrovertible power of judicial review, SCOTUS has been incredibly influential in American politics, sometimes even more than the other two branches.

The role and functioning of the US Supreme Court, as the third pillar of the American Republic, is best comprehended via the constitutional scholar, Richard Dworkin, who ascertained the Court’s duty of judicial review by explaining that its justices engage in moral readings of the US Constitution in order to contextualise its principles.

Judicial review evolved as the duty of the US Supreme Court which it would employ in order to nullify legislation that it considered ‘unconstitutional,’ ie, contradictory to the justices’ moral readings. That is to say, the US Supreme Court is nothing but the justices that comprise it, specifically their ideologies and interpretations of constitutional principles. Given that Associate Justices of the Court can only be nominated by the incumbent commander-in-chief, historically, US presidents have always chosen nominees who most align with their party’s ideology. Moreover, unlike justices of the Supreme Court of India, who have to retire after the age of 65, SCOTUS justices serve for life.

After her nomination in late October 2020, Amy Coney Barrett joined President Trump’s other two appointees, Neil Gorsuch and Bret Kavanaugh. Trump has appointed three justices and their average age is 52, meaning they are very much likely to serve for at least two to three decades; at the time of her death, Justice Ginsberg was eighty-seven years old. As a one-term president, Trump has been unprecedentedly consequential by being able to successfully nominate three justices — more than any other president in one term than President Richard Nixon; cementing a 6-3 conservative majority.

For decades, the 5-4 conservative majority was precarious as a single defection could lead to deadlock for conservative policies, or for the conservative blocking of liberal policies. Often, the fifth justice in question would be Justice Roberts who is known to be moderate to conservative on the ideological scale. However, the replacement of the liberal icon, Justice Ginsberg, by Barrett now makes that previously decisive defection quite inconsequential. This majority marks an unprecedented seismic shift in the Court’s centre of ideological gravity by a single nomination.

That is not to say, however, that SCOTUS has turned into a subservient tool for Trumpism. This generational effect on the Court is not a testament to Trump’s legacy as a politician, but actually to the legacy of Republican conservatism. Indeed, there is no doubt that Trump will go down in history as the Republican president who fulfilled his party’s perhaps greatest agenda, one that was thirty years in the making.

In order to comprehend the political context and the gravity of these nominations, we must retrace American political history to 1987, the year President Ronald Reagan nominated Court of Appeals judge, Robert Bork, to the Supreme Court. Clearly a constructionist, a judge with conservative leanings, Bork was vehemently attacked by the democratic majority in the Senate, which confirms judicial appointments. So dramatic were the Bork hearings that “to bork” became an official word in the Merriam-Webster dictionary. Defeated and insulted, Republicans who were in the minority vowed vengeance for a time in the future when they’d be in power.

Control of the Judiciary had actually been a conservative objective even before the Bork hearings. In the early 1980s, conservative law school students engaged in a collective action campaign that culminated in the Federalist Society, an institution that is an incubator of constructionist judicial activism.

The organisation, and the evangelical support it has commanded since its inception, was a consequence of widespread belief amongst conservative Americans in the 1970s that the country was turning a little too progressive; that it was losing the principles of family values and protestant discipline, which they accused the liberal judicial revolution of compromising.

Indeed, as much as it’d like to deny it and hide behind the veil of being an academic institution, the Federalist Society is a powerful public interest group that has used monetary and political means to materialise a conservative agenda.

Coming back to the Republican retribution for Bork, the central figure of the legislative branch in this political story is Senator Mitch Mcconnell. As the democrats of the Senate judiciary committee, chaired by then-Senator Joe Biden, were impugning Bork’s legitimacy, Mcconnell was watching behind the sidelines as a first-term junior senator. Over the past three decades, he rose up the ladder in the second house of Congress; from majority whip to Republican leader and finally the Senate majority leader, a position that gave him close to absolute power over the outcome of any vote. He launched the first salvo in 2016 when he unabashedly blocked President Barack Obama from nominating his choice of Merrick Garland as a replacement to the late Justice Scalia. Proclaiming, “this vacancy should not be filled until we have a new President,” he was gambling on candidate Trump winning the general election that November; a well-calculated risk that paid off with extraordinary yields.

As a novice businessman-turned-accidental-politician, who’d desultorily jumped from one party to another, candidate Trump needed to attach himself to an established ideology. On the other hand, in fulfilling its agenda the Federalist Society has always eagerly waited for a Republican to occupy the White House. Thus, the two came together in May 2016 when candidate Trump publicised that if elected President he would nominate a judge chosen from the list created by his legal advisor, Federalist Society vice-president Leonard Leo. Within weeks of taking office, President Trump delivered on his vow to conservatives by appointing Neil Gorsuch, one of the judges from that list.

President Trump, the Federalist Society and Senator McConnell have acted as Republican conservatism’s three pillars over the past four years, to fulfill the objective of capturing American democracy’s third pillar.

While previous nominations have pivoted the Supreme Court by replacing a liberal justice with a stalwart conservative one, such as when President HW Bush nominated the arch-conservative Clarence Thomas to replace Thurgood Marshall, a single nomination as that of Amy Coney Barrett has hardly ever polarised the Court’s ideology for a generation. A recent poll showed that Trump’s approval ratings have dropped to their lowest ever, at a mere 29 percent, and most Americans surveyed revealed that they’d much rather prefer that the outgoing president disappears from politics altogether, perhaps so the Republican party can save face and start afresh. However, even if Trump does ‘disappear’ and becomes a non-entity in the American political system, his Presidency will continue to be substantially consequential for the coming several decades.

The author is a graduate in political science from New York University

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