Republican judges had a strategy. Key Republican officeholders had a strategy. Turn back the clock.
Republican voters went along, too.
|Supreme Court Building|
GOP voters understood that changing the Supreme Court mattered so much that churchgoing Christian voters would vote for a venal, p***y-grabbing, "two-Corinthian" adulterer if it meant they might get judges who would reverse the legal and cultural changes past decades.
Democrats voters fussed and divided over who was good enough. Republicans voters understood that if they could get the judges they wanted, then even Trump was good enough.
Great landmarks in American life have been confirmed or turned back because of decisions made by the Supreme Court. Child labor laws. Access to contraception. Racially integrated schools. Access to abortion. Unlimited campaign spending. A presidential election.
Landmark decisions rest on a foundation of smaller, apparently inconsequential decisions in unremarkable cases. Those decisions create the legal rationale for the famous, landmark decisions. Does the 4th Amendment right to be "secure in ones persons, houses, papers, and effects" from "unreasonable searches" allow a married couple to possess and use a diaphragm for contraceptive purposes? The Court said yes, a famous case, but made it after finding barely enough precedent and implication in prior law and practice to declare it a right--secure from the majority sentiment of the Connecticut legislature to forbid the use of contraception.
Cultural conservatives have a big agenda. The 2016 election empowered turning back on many of the legal and cultural changes of the past fifty years. America is to be great again.
Thad Guyer writes that the building blocks to reverse the direction of the court have been put into place quietly for decades. With an evenly split court, depending on who joined the court, the direction could have gone either way. Now the die is cast and a direction set. With a firmly conservative court ready to be seated, a process of dismantling the changes of the past fifty years can accelerate.
Guest Post: Thad Guyer
Thad Guyer is an attorney with an international practice specializing in assisting whistleblowing employees. He practices primarily in federal court.
"The Border Wall at 1 First Street, NE, Washington, DC”
"I graduated law school in 1978, moved to the rural south to litigate civil rights cases, and was confident that newly elected Jimmy Carter and an evolving Supreme Court would provide my clients the legal infrastructure to win some social justice. Instead, Ronald Reagan campaigned on beating back a lawless liberal judiciary, and ousted Carter in 1980. It was a cruel lesson on “elections have consequences”. With Justice Kennedy’s retirement, we are almost certainly about to see the next iteration of Reagan’s conservative juggernaut-- a border wall against social justice movements constructed at 1 First Street, NE.
Roe v. Wade in 1973 showed conservatives that Brown v. Board of Education 19 years earlier was not just an aberration. They accused liberals of inventing a theory of “a living constitution” to win in court what they were denied at the ballot box. Conservatives were left with a crude non-telegenic strategy of blocking schoolhouse doors. Roe turned out to be a bitterly ironic Godsend. The religious right after some false starts was reborn.
In 1982, conservatives founded the Federalist Society to thwart the “living constitution”, and to replace it with “originalism” and “textualism”, the ideology that the Constitution “means no more or less than what it meant to those who originally wrote and ratified it”. In 1986, Rehnquist became Chief Justice to lead the conservative movement. Trump was elected on this Roe v. Wade continuum, on a promise to reinvigorate the holy cause of a conservative judiciary.
One of the most effective judicial appointment strategies of all time is that adopted by Trump. As Amanda Hollis-Brusky, author of Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution, says about Trump:“Cabinet nominees, his secretary nominees, he tends to gravitate towards nepotism, people who have been loyal, faithful. They're his friends. When you look at his list of judges and the people that he's put on the bench, it's been entirely controlled by the Federalist Society.” They may be about to turn back the clock to 1950 on Supreme Court jurisprudence.
Trump’s Court intends to limit the range of jurisdiction, i.e. the kinds of allowable cases that courts can consider. It will further restrict judicial standing, i.e., who can be a plaintiff to even file lawsuits in the first place. And untempered by Kennedy’s moderation, the Court will further cut back on available remedies, i.e., what power judges have to order social justice.
The anti-Trump Resistance’s effective use of litigation against Trump-- against a powerful presidency— has shaken-up conservative jurists and academics. Nationwide injunctions have been issued in case after case. One by one, the Supreme Court has undone, delayed or weakened these Resistance wins. By limiting jurisdiction over what cases can be brought, restricting who has standing to file them, and minimizing what power lower courts have to give “class relief” and issue national injunctions, the high court will not have to reverse the lower courts case by case. They can have them dismissed almost as soon as they are filed.
Republicans are shockingly good at the long game."