Yesterday, the Supreme Court ruled Trump’s travel ban as constitutional. They also ruled that crisis pregnancy centers in California have no legal obligation to provide patients information about abortions, effectively allowing these centers to continue alleged policies of attempting to manipulate women into continuing with their pregnancy through misinformation and pressure tactics.
The decisions were split ideologically 5-4. Both likely would not have passed if Obama’s last Justice appointee, Merrick Garland, was on the court.
Of course, that’s not what happened. In one of the most nakedly cynical political maneuvers of a generation, Senate Majority Leader Mitch McConnell not only opposed Garland’s appointment but refused to hold any hearings on his nomination, effectively ignoring Obama’s constitutional authority and denying Garland any chance at becoming a Justice. The decision was widely criticized at the time, but in hindsight was not attacked as viciously as needed because most assumed Hillary Clinton would be the next President and McConnell would need to face a liberal Justice someday. That didn’t happen, and now the hardline conservative Neil Gorsuch resides in a seat that was stolen.
The Video Loss Newsletter is a weekly digest of media, politics, and dreams.
There is a path in my mind to get out of our current nightmare electorally: the moral outrage of the Trump presidency creating a wave of renewed progressive activism and political engagement that sweeps through the country, overwhelming conservative and moderate incumbents alike through sheer force of will. An even more energized and ideologically coherent Yes We Can movement. A good Tea Party. You saw the first hints of it last night.
There’s a substantially less clear path of what to do about a Supreme Court many view as tainted by a stolen seat and everyone views as majority conservative. Things are bleak. Roberts, Gorsuch, Thomas, and Alito have continuously demonstrated their hardline conservatism. Kennedy is a wildcard to the point of being effectively useless. The liberal front of the court—most notably Ginsburg and Breyer—are old and may need to be replaced before Trump’s first term ends. But even if all the liberal Justices hang on until a hypothetical Democratic President enters in 2021, the Court seems to be a lost cause for at least a decade and likely more. Today was a good reminder of that undeniable fact.
Even in a universe where the progressive front sweeps into elected office, a Conservative-majority Supreme Court means stimed progress and less incentive to propose bold policy. This is to say nothing of the fundamental progressive court decisions our society relies on, many of which risk limits or outright abolishment under this court. Someday, the framework of Roe v. Wade will be challenged and it is concerning to think about what the decision will be.
The Supreme Court has always ebbed and flowed in ideology, but a seat was never outright held from an incumbent President with the brazenness McConnell demonstrated. That was an ugly decision and should be corrected aggressively by a Democratic government. Unfortunately, all paths out of this for Democrats are complicated and controversial, the kind of “incivility” that a significant portion of the current party will likely bemoan and oppose. This includes:
- Increasing the number of Supreme Court Justices to allow greater ideological diversity, break the Conservative stranglehold, and keep this from happening every time a Justice retires. This has happened multiple times in history, but the latest attempt led by FDR was unsuccessful and heavily criticized even by his own party.
- Impeach Gorsuch on the grounds the seat was invalid and stolen, and maybe take Thomas out with him for being a sexual harasser. There’s a path to this that runs through Congress, but it’s never happened before. Personally, this seems like their best bet.
- A Democratic Congress could move aggressively to pass new laws that work around unfavorable Supreme Court decisions.
- An obvious option: rigorously opposing any future open seat under Trump until he leaves office. This is contingent on Democrats securing the Senate in the midterms, which ¯\_(ツ)_/¯
All of these choices are unpalatable to a political observer inspired by The West Wing, but so is a stolen Supreme Court seat and a future with a further weakened Civil Rights Act. This should be a priority to any incoming elected Democrat. And while many of these actions will undoubtedly receive vigorous criticism, none of the people behind these actions should bear the responsibility of this situation.
Mitch McConnell broke the Supreme Court when he decided to ignore his Constitutional obligation for the off-chance a Republican would become the next President. Just because his gamble paid off means everything should go back to normal. Gorsuch’s seat is marred by the abject theft that allows him to occupy it. The path to correct that theft and to save a generation from oppressive conservative mandates is ugly and unnavigated. But it exists in reaction to a fundamental, initial crime.
You can hear the op-eds now. Combating this injustice could lead to a fracture in the Supreme Court. Another American institution collapsed under the weight of ideological warfare. But this battle will not begin when Democrats stand up and fight. It began when McConnell stole Merrick Garland’s chance at a confirmation hearing for nakedly partisan reasons. He is solely responsible for starting this war, and Democrats now need to win it.