Now that Congress has ‘fallen into line’ and is pandering to Trump’s every whim, licking his boots and kissing his posterior, there is one last bastion of justice remaining: the United States Supreme Court. Last year, after the untimely death of Justice Antonin Scalia, the Republicans in Congress effectively blocked President Obama’s nominee, Merrick Garland, by refusing to hold even preliminary confirmation hearings. Thus, the position remained open when Trump took office, and it is now up to him to fill. More about that in a bit.
The U.S. Constitution does not specify the number of Supreme Court Justices. Article III of the Constitution established the Supreme Court, but left it to Congress to decide on the appropriate number of Justices. The Judiciary Act of 1789 set the number at six: a chief justice and five associate justices. In 1807, Congress increased the number of justices to seven; in 1837, the number was bumped up to nine; and in 1863, it rose to 10. In 1866, Congress passed the Judicial Circuits Act, which shrank the number of justices back down to seven and prevented President Andrew Johnson from appointing anyone new to the court. Three years later, in 1869, Congress raised the number of justices to nine, where it has stood ever since. It has mostly worked well for 148 years.
Many of us are understandably concerned about the composition of the court these days. There is already one vacancy for Trump to fill, a position for which he has nominated Neil Gorsuch. But there are three other justices who are likely to retire from the court soon: Justice Anthony Kennedy, a moderate-conservative who is 79, Justice Stephen Breyer, a liberal who is 78, and Justice Ruth Bader Ginsburg, also a liberal who will be 84 next month. The problem arises when we consider the way these justices tend to vote. All three have voted consistently in favour of human rights, civil rights and social issues. If Trump had the opportunity to fill all three of these positions, in addition to the one already vacant, the court would be comprised of 7 conservative justices and only 2 liberal-leaning. This would spell disaster for the LGBT community, for African-Americans, for immigrants, for women … for all of us, really.
On a positive note, tonight I was reading about an interview Justice Ginsburg gave to the BBC this week where she said … well, I will let her tell you in her own words:
“I read the Washington Post and the New York Times every day, and I think that the reporters are trying to tell the public the way things are. Our legislature – which is the first branch of government – is right now not working. I am optimistic in the long run. A great man once said that the true symbol of the United States is not the bald eagle. It is the pendulum. And when the pendulum swings too far in one direction it will go back. Some terrible things have happened in the United States but one can only hope that we learn from those bad things.”
Of the Women’s March on Washington, 21 January, she said:
“I’ve never seen such a demonstration – both the numbers and the rapport of the people in that crowd. There was no violence, it was orderly. So yes, we are not experiencing the best times but there is reason to hope that that we will see a better day.”
But the important part was …
“At my age you have to take it year by year. I know I’m OK. What will be next year? I’m hopeful however, because my most senior colleague the one who most recently retired, Justice John Paul Stevens, stepped down at age 90. So I have a way to go.”
At an appearance at George Washington University on Thursday night, Justice Ginsburg said, “we are not as mindful of what makes America great.” So very true! Ginsburg stopped short of mentioning Trump or his policies directly, as she got into some hot water for that last year when she gave an interview critical of Trump and was taken to task for her candor:
“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that. He is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”
I always did like this woman! She sees clearly the damage that is being done by the current administration, sees the unwillingness of Congress to stand against Trump, and is determined to try to stay on the court a few more years. Let us hope that Kennedy and Breyer will do the same. Though Kennedy is considered a moderate-conservative, he leans toward liberal in most social issues, so even if Gorsuch is confirmed, as is expected, we should still have a fairly well-balanced court. For now. At least well-balanced enough to keep from overturning such important issues as voting rights, same-sex marriage, and Roe v Wade, which Trump has sworn to see overturned after 43 years.
As for Gorsuch, I suspect he will be conservative on most issues, but then so was Scalia. But like Scalia, he is known for also being thoughtful and fair, so if Breyer, Kennedy and Ginsburg are able to stay in good health and willing to remain on the bench for a few more years, we should be alright. But if one dies, retires, or otherwise vacates, all bets are off. At present, all hope for maintaining the civil and social rights we have fought so hard for lies in the hands of the Supreme Court.