Under Trump, US Supreme Court May No Longer Be Ultimate Arbiter Of Justice


President Donald Trump signs a proclamation in the Diplomatic Reception Room of the White House, recognizing Jerusalem as Israel’s capital despite

Ashok Easwaran

CHICAGO (IANS): Few changes in the US Supreme Court have provoked the widespread consternation of the American public, specially women, as the recent exit of Justice Anthony Kennedy.

After his retirement, announced in a brief and ‘gracious’ letter to President Donald Trump was made public, it came to be known that the White House had ever so gently nudged Kennedy to retire, giving Trump the opportunity to choose the second Supreme Court judge since taking office.

There is trepidation that President Donald Trump has a free hand to fulfill his campaign promise of filling the Supreme Court with ‘conservative judges’.

With the appointment of another conservative judge, the 1973 verdict in Roe vs Wade, which legalized abortion in the first trimester of pregnancy, could well be overturned. Also on the judicial chopping block could be restrictions on the rights of minorities, gays and labour unions.

With Trump’s appointment last year of Neil Gorsuch, Supreme Court conservatives on the bench outflank the liberals 5-4. Another right leaning judge could change the character of the US Supreme Court for decades to come. It is a legacy which Trump, and the Republicans, have salivated over since the 2016 election campaign.

The appointment of Gorsuch, and the coming one to replace Kennedy, are projected by the administration as necessary to preserve the legacy of the icon of judicial conservatism – the late Justice Antonin Scalia.

But Scalia’s pronouncements have frequently betrayed a jurist who was not the rabid conservative Republicans would have us believe. Indeed, many of his public pronouncements show him guilty of letting reason and rationale trump conservatism, a cardinal sin in the Trumpian lexicon.

Scalia was a ‘textualist’ – who called those who interpreted the US Constitution a ‘living’ or ‘evolving’ document ‘idiotic’.

Nevertheless, on abortion he had this to say: “My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad,” he said. “Regardless of how you come out on that, my only point is the Constitution does not say anything about it. It leaves it up to democratic choice.”

To die hard evangelicals whose boundless faith in Trump obscures most issues, Scalia’s advice to high school students in 2010 may be prescient.

“Movement is not necessarily progress,” Scalia said, “More important than your obligation to follow your conscience, or at least prior to it, is your obligation to form your conscience correctly. It is your responsibility not just to be zealous in the pursuit of your ideals, but to be sure that your ideals are the right ones. That is perhaps the hardest part of being a good human being: Good intentions are not enough. Being a good person begins with being a wise person.”

In a Trumpian era with an increasingly dysfunctional Congress, the judiciary would seem to be the last bastion of the three branches of government. But to the increasing consternation of the Left, and the stridency of the Right, this citadel seems to be crumbling.

The US Supreme Court has played an increasing role in determining – or in recent weeks, undermining – the protection for immigrants (travel ban), women (abortion rights) and the working class (labour unions).

A veteran lawmaker, California Senator Dianne Feinstein has warned that President Trump’s Supreme Court nominee, “could eviscerate women’s freedoms for generations”.

“The American people must know what’s at stake in this nomination … because overturning Roe vs Wade would take us back to the days of women being seriously injured and dying because they can’t get basic medical care,” said Feinstein, the top Democrat on the Senate Judiciary Committee.

One of the great mysteries of the 2016 election was the unqualified support for Trump by a significant number of white evangelical women. Even in the face of the ‘#Metoo’ movement and Trump’s consistent profane and public insult of women, they – along with white evangelical men – form his most cohesive block of support.

Trump has revealed in his obvious disdain for women. In an interview on Fox News, he made a veiled reference to the interviewer’s menstrual cycles. He has consistently had problems with a woman’s biological processes. In a presidential debate, he called then presidential candidate Hillary Clinton’s need for a toilet break ‘disgusting’. Earlier, he had used the same epithet for an opposing female attorney who sought a break to breast feed her three month old daughter.

Eighteen months into Trump’s presidency, there are signs of revolt among women and minorities, the two groups most affected by his actions in office.

Four hundred and seventy-two women have entered the race for the US House of Representatives this year, a record of sorts. Fifty-seven women have filed their candidacies for the US Senate. Political analysts have said that since a majority of female candidates are Democrats, it is safe to presume that many of them are fuelled by frustration, if not fury, against the current occupant of the White House.

Another remarkable feature of the contestants is the diversity – it includes more women of colour than in previous electoral years, as well as a number of immigrants.

The elections in November are likely to be the first indicator of the degree of vigour behind the revolt against Trump. Or more precisely if the anger and anguish can be converted into political capital. As in any election with high stakes, there are variables, of course, but perhaps the core risk factor is the probability of the human species to act against its own best interests.

In The Republic, the Greek philosopher Plato describes a conversation between Socrates and Adeimantus in which Socrates compares a democratic society to a ship. If Adeimantus was heading out to sea, Socrates queries Adeimantus, who would he have as the skipper of the ship. Any passenger at all or someone skilled in seafaring? Adeimantus does not hesitate. “Why, the latter of course,” he says. “So why then,” responds Socrates, “do we think that any old person should be fit to judge who should be a ruler of a country?”

Voting in an election is a skill, asserts Socrates, not a random intuition. And like any skill, it needs to be taught systematically to people.

The citizens of ancient Athens had a bitter experience of the decline of democracy. It came in the form of Alcibiades, a rich, charismatic, smooth talking man who eroded basic freedoms and helped to push Athens to its disastrous military adventures in Sicily.

Socrates knew how easily people seeking election could exploit our desire for easy answers. “It takes very little”, Socrates warns, “for a democracy to descend to demagoguery”.

Only the boundlessly faithful can miss the parallel between Alcibiades’s Athens and Trump’s America.

(Ashok Easwaran is an American journalist of Indian origin. He has reported from North America for over two decades. He can be contacted at [email protected] The views expressed are his own.)

Clarion India - News, Views and Insights about Indian Muslims, Dalits, Minorities, Women and Other Marginalised and Dispossessed Communities.

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