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By Thomas Kelsall | @Thomas_Kelsall
Four-year term, forty years of damage.
The effects of Donald Trump’s presidency will be in no way limited to his four-year term; rather, his decisions will have a lasting impact on the future of US electoral politics.
In the next forty years, women could lose their right to abortion, gays their right to marriage, minorities could be heavily targeted for trying to vote, and religious people could expand their right to discriminate without government intervention.
Last week, Justice Anthony Kennedy announced his retirement from the Supreme Court, opening the door for President Trump to make another lifetime appointment to the highest bench in America.
The retirement of the centre-right Justice Kennedy will allow Republicans to pack the Court with another far-right judge, giving them a clear 5–4 majority on the bench.
This will be Trump’s second appointment to the Court, after he successfully nominated arch-conservative Neil Gorsuch early last year.
Court appointments are for life, so the highest court in the land will be a conservative body for the next generation.
In short, this may be the most significant and irreversible aspect of Trump’s presidency, and it could change America in ways we are not even aware of yet.
Why is the Supreme Court so important?
The Supreme Court is one of the most influential political institutions in the world, and its judges rule on highly consequential cases which set the legal parameters for many policy debates and have enduring implications for the course of American history.
For example, Dred Scott v. Sandford (1857) set the stage for the American Civil War, as it denied African American slaves of citizenship.
Roe v. Wade (1973) gave women the constitutional right to an abortion; a decision which has resiliently stood the test of time despite the continual presence of anti-abortionists in the legislative and executive branches of government.
Bush v. Gore (2000) effectively decided a presidential election, Citizens United v. Federal Election Commission (2010) determined that corporations can spend money on political campaigns, and Obergefell v. Hodges (2015) legalised same-sex marriage in all 50 states.
These last three cases were all decided by a 5–4 verdict, highlighting the deeply ideological nature of the court, as well as the huge stakes that rest on each vote.
Justice Gorsuch has radically changed the complexion of the Federal Judiciary, repeatedly ruling in favour of key conservative causes.
For example, last Tuesday, Trump’s travel ban was upheld by the Court in a 5–4 verdict, with the crucial vote being castby Gorsuch.
The next day, in another 5–4 verdict, the Court ruled in favour of a state government employee in Janus v. American Federation of State, County, and Municipal Employees (AFSCME); a decision which will cripple public sector unions for the foreseeable future.
The case was concerned with the “agency fees” unions charge non-union members.
These fees cover operating costs for collective bargaining conducted by unions on behalf of every worker they represent (union member or not).
The agency fees are entirely separate from any political advocacy the union partakes in, ensuring it is not forcing anyone to support political causes they oppose.
Despite this, Mark Janus argued his $45 agency fee was a violation of his free speech, and the conservative Supreme Court agreed.
As a result, unions will be legally obliged to represent workers but have no legal means to require any payment for this representation.
As Benjamin Sachs and Sharon Block wrote for Vox, this will have an enormous impact on the future of the labour movement in the US.
“Unless something changes in response to the Court’s decision, public sector unions will face a funding crisis that threatens their very existence,” Sachs and Block said.
“Unions must, by law, represent everyone equally, if there’s no requirement to pay your fair share, then unions would end up providing costly representation to lots of people who decided not to pay for it.
“But that’s precisely the situation that Janus v. AFSCME establishes. Employees can now choose whether they want to pay for union services or whether they would rather receive precisely the same services for free.”
Such a crippling blow to unionism highlights the enormous importance of the Supreme Court to both sides of politics, and with the Court likely to be controlled by Republican nominees for the next 30 years, the election of Trump in 2016 will be felt for generations to come.
Why do we have a conservative Court?
Since 1988, Republicans have only won the popular vote in a Presidential election once, yet they have comprehensive control of the Supreme Court—a remarkably undemocratic feat in a system that is supposed to be predicatedon democratic representation.
It is in part due to a campaign of unprecedented Republican obstructionism.
Judicial nominations are approved by a vote in the Senate, a legislative body controlled by Republicans since 2015.
Former President Barack Obama successfully nominated two judges to the Supreme Court: Justice Sonia Sotomayor and Justice Elena Kagan.
However, President Obama nominated these judges in his first two years in office—when Democrats had control of the Senate.
On March 16 2016, President Obama nominated Merrick Garland—a centrist and compromise nominee—to fill the Supreme Court seat of the recently passed Justice Antonin Scalia.
With control of the Senate, Republicans denied Garland even a hearing, let alone a confirmation vote, on the basis that any nomination made in the last year of a president’s term is invalid—a faux principle with no precedent.
Garland’s nomination expired, and the 2016 election paved the way for Trump to nominate Justice Gorsuch instead.
Republicans had effectively “stolen” a Supreme Court seat, and the timely retirement of Justice Kennedy will allow Trump to cement conservativism in the Court for years to come.
Trump’s appointments are not limited to the Supreme Court
In fact, Trump is appointing judges at a faster rate than any other president in history.
Since he came into office 17 months ago, Trump has appointed 21 appellate judges and 20 district judges.
For context, President Obama only managed to get 16 appellate judges approved after a full two years in office.
Appellate judges and district judges serve in the two levels below the Supreme Court: the US Court of Appeals and the District Courts.
The Supreme Court only hears around 80 cases a year, so although it is the highest court in the land, the appellate and district courts have a much broader impact on the application of federal laws as 400,000 cases are filed into the Federal Judiciary every year.
Appellate and district judges are appointed at a much younger age, meaning Trump’s appointees could be serving until 2070 and beyond.
Like Justice Gorsuch, many of these judges have radical right-wing views.
Justice James Ho, a Trump appointed appellatejudge, recently wrote a dissent arguing that all campaign finance restrictions should be abolished, allowing corporations to contribute whatever they want to politicians.
Another Trump appellate judge, Justice Amy Barrett (a potential Supreme Court nominee), has ties to a Catholic organisation where women are called ‘handmaids’ and are ordered to be subservient to their male ‘heads’.
One of her recent rulings was to approve an employer’s policy of racial segregation, the Equal Employment Opportunity Commission from blocking a store’s policy of transferring employees based on their race.
Then there is Justice John Bush, Trump’s appointment to the 6th Circuit Court of Appeals, who has compared abortion to slavery, questioned Obama’s birthplace, co-authored an anti-LGBTQIA+ and women’s rights blog, and used the word ‘faggot’ in a speech.
Two of Trump’s judicial nominations had to withdraw, one because of an extraordinary Senate hearing where he could not answer basiclegal questions; the other due to a series of posts defending the KluKlux Klan.
Despite this, Trump still has 100 judges pending confirmation and Democrats will be powerless to reject them until they regain control of the Senate; something they are unlikely to accomplish until at least 2020.
What could the future hold?
The most imminent threat is to Roe v. Wade, a ruling which Trump promised to reverse during his 2016 campaign.
If overturned, individual states will be able to make their own decisions on abortion laws, an outcome CNN’s Chief Legal Analyst Jeffrey Toobin warns will have dire consequences for pro-choice advocates.
“You are going to see 20 states pass laws banning abortion outright because they know that there are going to be five votes on the Supreme Court to overturn Roe v. Wade,” Mr Toobin said on CNN.
“Abortion will be illegal in a significant part of the US in 18 months; there is just no doubt about that … Roe v. Wade is doomed because Donald Trump won the election.”
In this scenario, women would have to travel to other states to have an abortion, something Congress could potentially make illegal.
This will have majorpublic health consequences.
Research suggests states with the most restrictive abortion laws have the highest demand for ‘self-induced’ abortions: unregulated and dangerous methods of causing a miscarriage.
Next on the agenda could be LGBTQIA+ rights.
Justice Kennedy was the deciding vote in favour of gay marriage and usually sidedwith the LGBTQIA+ community despite his conservative views.
His retirement has many Christian conservatives very excited.
Michael Farris, the President of the Alliance Defending Freedom, quickly released a statement in light of Justice Kennedy’s retirement.
“We respectfully disagree with those decisions where Justice Kennedy created ‘rights’ not found in or intended by the United States Constitution,” Mr Farris said.
“He deeply disappointed many Americans with his constitutional jurisprudence favouring abortion and same-sex marriage.
“Alliance Defending Freedom looks forward to the president’s nomination of a person to replace Justice Kennedy on the Supreme Court who will uphold the First Amendment and the original public meaning of the Constitution.”
While a complete overturn of same-sex marriage may be a bridge too far, the court’s future decisions are more likely to chip away at LGBTQIA+ protections by expanding religious freedom.
Key questions that will be addressed by the court are whether religious rights can override protections for LGBTQIA+ people in public settings, whether gay people can be denied service at a restaurant, or transgender people forced into bathrooms opposite to their gender identity.
If Justice Gorsuch is anything to go by, religious freedom will be significantly expandedin the coming years.
As ThinkProgress Justice Editor Ian Millhiser told the Majority Report, Gorsuch’s conception of religion in society is extraordinarily permissive.
“What Gorsuch wants to do is to change the law for religion and say that you are protectedif you take an action that is motivated by your faith,” Mr Millhiser said.
“So, if I think Jesus tells me to go into your bar and be loud and obnoxious, and the bartender wants to kick me out because of the obnoxious actions I am taking that are motivated by my faith; under Gorsuch’s theory I’m protected.”
Last year, Gorsuch wrote the dissenting opinion on a verdict mandating states to list same-sex parents on birth certificates; a small preview of how he will rule on LGBTQIA+ issues.
Equally consequential will be the Court’s willingness to help Republicans carry out their long-term goal of voter suppression.
Last month, in yet another 5–4 verdict, the Court upheld the state of Ohio’s right to purge voters from future voter rolls if they do not vote in an election and do not respond to a confirmation letter—a processdisproportionality impacting minorities.
Purging voter rolls is just one part of a largersuppression project by Republicans, which includes voter ID laws, reducing early voting, shutting down polling locations and making it harder to vote by mail.
Challenges to these policies will continue to be struck down by the courts, and the disenfranchisement of the minority vote—a large part of the Democratic constituency—will consolidate Republican power at both a state and federal level.
Even when the next Democratic president takes office, they will immediately find themselves struggling to implement laws—especially regulatory policy.
As The Economist says, conservative judges who interpret the constitution in its original form will put a strait jacket on any “big government” reforms attempted by the next president.
“A federal judiciary stocked with originalist judges will be hostile to an ambitious federal government…business types appreciate originalists’ scepticism of government regulation,” the newspaper wrote in January 2018.
“That suits Republicans well but could frustrate Democrats for decades to come.”
Wall Street reform, universal government healthcare and environmental regulations are a small list of policy-aims Democrats will struggle to implement with a conservative judiciary.
In short, while Trump’s time in office has been fraught with legislative failures, foreign policy blunders and a major investigation undermining his legitimacy; it will not make him any less influential a figure in American history.
As Konrad Yakabuski neatly summed up for The Globe and Mail, America is in a lot of trouble, even if it does not entirely resemble Margaret Atwood’s dystopia.
“It may not be as bad as The Handmaid’s Tale. Abortion won’t be banned outright. But state laws that restrict access to it are more likely to survive a Supreme Court challenge,” Mr Yakabuski wrote.
“States that seek to reimpose bans on same-sex marriage are more likely to see such bans validated. Union rights will be guttedfurther. And limits on political donations may go by the wayside altogether.
“For those who had hoped or expected Mr Trump’s improbable presidency would just be an unfortunate footnote, the events of this week alone have proved them wrong.”