US Supreme Court is the real battleground

If conservative Brett Kavanaugh is appointed, he could weave president Donald Trump’s agenda into the fabric of American society for generations, writes Bette Browne.

We are currently consumed by US president Donald Trump’s White House woes, but the congressional battle to confirm his nominee, Brett Kavanaugh, to the Supreme Court for a lifetime term, is far more significant. The new justice can sew Trump’s legacy into the fabric of America for generations.

The court can be expected to weigh in on gun control, abortion rights, and even on the fate of Trump’s presidency, if he were to challenge the powers of Robert Mueller’s investigation into any collusion with Russia by Trump or his campaign team. In all of these issues, Kavanaugh, who is on record as believing the US president is above investigation while in office, will play a key role in swinging the court in favour of his agenda.

Although justices are nominated by the president and confirmed by the US Senate, they do not represent or receive official endorsements from political parties. But they are informally categorised in legal and political circles as being judicial conservatives, moderates, or liberals. The Supreme Court is the final judge of the constitutionality of all legislation passed by the US Congress, but most cases that come before it involve interpreting the US constitution.

Conservative-leaning justices tend towards a literal interpretation of the document, while the liberal-leaning ones see it as a living document that impacts current issues. This is a court that, over the last two centuries, has changed the face of America by expanding rights or by curtailing them. It has decided the fate of presidents, weighed in on the enslavement of black Americans, and upheld free speech, among a host of historic rulings, and many future decisions can also be expected to have a major impact on the personal and political lives of Americans.

If, as expected in the November elections, Republicans lose control of Congress, then the make-up of the Supreme Court will be critical for them, because a conservative-leaning majority could be expected to come down on the side of rulings that would have the effect of boosting the party’s political stance.

In that scenario, the battleground will move from Congress to the Supreme Court. This is why $10m has been invested in this nomination battle, with most of it coming from groups backing Kavanaugh. And, since Republicans have the numbers in the Senate to confirm him, his accession to the court is all but guaranteed. The US House of Representatives plays no role in the confirmation. All Democrats can do is to try to stall the process, but the Senate’s Republican leaders have vowed to have Kavanaugh in place before the court’s new term begins in October, and well before the results of the November election that could alter the balance of power in the senate.

One group that plays a key role in the process is the conservative Federalist Society, whose membership has included Supreme Court justices Neil Gorsuch, who was Trump’s first nominee to be confirmed in January, 2017, John Roberts, Samuel Alito, Clarence Thomas, and the late Antonin Scalia.

The society, which also supports Kavanaugh, believes in a more literal interpretation of the Constitution, declaring:

The duty of the judiciary is to say what the law is, not what it should be

The Supreme Court is made up of the chief justice, John Roberts, and eight associate justices. All of them — six men and three women — are there for life or until they choose to retire, as 82-year-old Anthony Kennedy did this year, leaving the vacancy that 53-year-old Kavanaugh now hopes to fill.

The justices are in their 50s, 60s, 70s, or 80s. The youngest is Gorsuch, who is 51. The oldest is 85-year-old Ruth Bader Ginsburg, dubbed the ‘notorious RBG’, because of her forthright views and scathing dissents. She insists she won’t retire, because it would give Trump a chance to appoint another justice.

The court has delivered a number of momentous decisions that have had a profound impact on the country. Among the cases were two during the era of Richard Nixon, who resigned in 1974 to avoid presidential impeachment. When Nixon claimed executive privilege over taped conversations relating to the Watergate scandal, the Supreme Court ruled that he had to turn over the tapes and other documents, thus setting a precedent limiting the power of US presidents.

Another landmark ruling involved freedom of the press, after the leak of classified materials about the Vietnam War to The New York Times. Nixon’s team deemed it a breach of national security and attempted to censor the material, citing power vested in the executive branch. But the court upheld the right of the newspaper to publish what became known as the ‘Pentagon Papers’. In a dramatic ruling in 2012, the court voted 5-4 to uphold then president Barack Obama’s Affordable Care Act, a law that helped to make healthcare affordable to millions of poorer Americans and which the Trump administration and Republicans in Congress still want to repeal.

In an earlier era, one of the most shameful decisions by the court was its upholding of the constitutionality of racial segregation in public facilities, in an 1896 decision, Plessy v Ferguson.

It said racial segregation laws for public facilities were constitutional, as long as the segregated facilities were equal in quality, a doctrine that came to be known as ‘separate but equal’.

Another infamous decision came four decades earlier, in 1857, involving the disenfranchisement of African-Americans, in a decision that held that blacks could not be American citizens. The opinion, in Dred Scott v Sandford, declared that slaves were not citizens of the US and could not sue in federal courts. But 100 years later, in 1954, in the Brown v Board of Education case, the court declared that state laws establishing separate public schools for black and white students were unconstitutional.

The man who argued and won that case before the Supreme Court was Thurgood Marshall, the grandson of a slave. In 1967, Marshall went on to become the first African-American associate justice of the Supreme Court.

In 1973, in the landmark Roe v Wade decision, the court voted 7-2 in favour of a woman’s right to decide to have an abortion. The right of privacy was at the heart of the ruling.

In December 2000, in a dispute between Democrat Al Gore and Republican George Bush, over the counting of votes in Florida in the presidential election that year, the Supreme Court ruled 5-4 in favour of Bush, who was then declared president.

Eighteen years later, Americans will be hoping that the court will not have to adjudicate in another presidential dispute — or, if it does, that it will rise above partisan politics and summon the wisdom and courage expected by the framers of the constitution.

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