US President Donald Trump’s decision to nominate Brett Kavanaugh to the Supreme Court will likely forever change America.
Any nation-shaping decision that comes down to the discretion of Trump and his loyal consultants and allies is a terrifying prospect indeed. Ultimately, we will see if this decision is simply an unfortunate bump in the road, or a disastrous and nation-altering one.
As the collective American public was suffering through the summer doldrums of 2016, many faced what seemed to be a nightmarish choice to replace the relatively popular (and certainly historic and iconic) Barack Obama.
To many, Hillary Clinton vs. Donald Trump became a metaphor for the rapid degradation of American politics. One represented the corrupt, ineffective and limited Washington bureaucratic machine. The other was, of course, Donald Trump – a combination of conventional Republican politics and brazen white nationalism.
The choice of Trump was obviously much worse, but logic, as history will tell you, hasn’t always been the backbone of American political discourse.
Yet, as with every election, the rhetoric became repeated as if in a loop; the same arguments made by the same people on the same channels and the same social media platforms. It was no wonder that it seemed for many Americans that the process was just as insufferable as the choices they were presented with in November of that year.
Through the mesh of the endless back-and-forth there was one argument that individuals from leftist activists to the most ardent Clinton supporters could agree on: A Trump victory would have a dramatic impact on many things, but perhaps none more so than on the Supreme Court.
Indeed, American civil society will be shaped for generations by the results that came in November 2016 because no institution in the country arguably has more of an impact on the day-to-day lives of Americans than the Supreme Court.
It’s an institution largely forgotten by many domestically, and certainly by many overseas when they examine and opine on American politics. Yet the decisions that emanate from it’s halls will shape American culture and the fabric of society for decades to come.
Trump’s Quick Progress
For an administration in which “chaotic” would be too kind of an adjective to describe its daily workings, and whose legislative agenda has been incoherent and sloppy at best – putting aside the immorality of most of their policies (we only have so much time), its judicial agenda has been swift, coherent, and consistently executed since the start.
Trump has made quick progress filling federal appeals court spots and gaining Senate confirmations for 15 in one year, which is six more than the Obama administration had in one year with an even greater party majority in the Senate.
Regional appeals courts play a significant role in shaping US law and have the final say on a variety of crucial issues since the Supreme Court only hears a tiny portion of cases. These issues include voting rights, gun rights, religious-based issues, healthcare, and other controversial social issues in the United States.
This principle was one of the primary justifications made by social conservatives who chose to look the other way when it came to many of Trump’s obvious moral shortcomings. Just elect him and we can use him to shape the social and political fabric of America for decades, they argued.
They made that bet, and look where we are now.
Trump promised to change the nature of American society and craft it in an image that would make social and religious conservatives beam with pride.
While they delivered the votes in November 2016, he has since then delivered on that promise in ways that perhaps even someone like his number one fanboy Sean Hannity couldn’t have even predicted. Candidate for Supreme Court Anthony Kennedy, though hardly ever a true moderate, could be relied on to hold back the levy and restrain the more radical conservative elements of the court from having their way.
On 5-4 decisions in which he would be the deciding swing vote, he could be counted on joining the other four liberal members of the court about 25 per cent of the time. However, with the nomination and eventual ascension of Brett Kavanaugh to the Supreme Court, the “moderate” is gone and the floodgates are officially open.
Religion and Law
During the last several years, religious-based issues brought before the court have been raised to even higher priority by the conservatives who were watching the Obama administration make significant changes – mainly regarding the expansion of gay rights and increased access to birth control options.
Now, the new justice will be expected to consistently take positions encouraging and granting faith-based changes to state and federal policies, while also broadening funding for church-run organizations and even allowing prayer (we obviously know which faith they are implying and encouraging) in public settings.
The elevation of Kavanaugh to the court will only give conservative activists more hope that they can steadily change rulings on key issues relating to religious freedom. This has always been a priority of conservative activists and legislators, so it stands to reason this will be a top priority for the court now that the nomination has been made.
Weaponizing the First Amendment
The phrase Weaponizing the First Amendment was first coined by liberal justice Elena Kagan after a 5-4 decision in Janus v. American Federation of State, County, and Municipal Employees hampered, according to many, public sector unions and workers rights.
However, Kagan’s point ran deeper than one decision because over the last few years conservatives on the bench have been using free speech as justification to allow unfettered campaign spending. They have buffered attacks by many who have attempted to go after the pharmaceutical industry, big tobacco, and gun lobbies.
The most devastating decision of the last decade from the court was the Citizens United case, which essentially equated putting a limit on corporate spending within political campaigns with the government violating individual First Amendment rights. If that sounds insane, it’s because it is in fact insane.
Yet, with the nomination of Kavanaugh to the court one can be assured that decisions like Citizens United will be warmly embraced as a precedent to treasure, not as a precedent that one should attempt to reverse.
The First Amendment will be used to give corporations and other private entities increased powers when it comes to issues deemed too restricting on their social, religious, and financial privileges. This is a massive victory for the majority on the far right who have grown disgusted with what they have perceived as liberal restrictions on their ideas and institutions.
Although many times (unfairly) framed as simply a religious issue, the future of Roe v. Wade (the 1973 ruling legalizing abortion) will nonetheless be the focus of an aggressive ideological confrontation now starting from the highest legal court in the land.
While Trump has stated he did not explicitly ask any candidate about the case, the issue will come up now that the court is likely to swing decidedly to the conservative camp.
Furthermore, right-wing attacks from the bench to the cultural fabric of American society will come in a variety of different ways. The revamped court will assuredly attack Affirmative Action, which will lead to less people of color attending universities and colleges. This new court will also support the continued conservative attacks on voting rights, making those discriminatory policies even more restrictive and grotesque.
It will side with gun rights activists and include regulation of machine guns and bump stocks, making America’s already senseless gun laws all the more senseless and privatized.
As in Janus v. American Federation of State, County, and Municipal Employees, the court may not be afraid to overturn precedents and rulings that have been in place for many decades and which protected individual civil liberties from corporations and other larger entities.
Monumental and Pivotal Decision in American History
If confirmed, Kavanaugh will inevitably be seen as another win for corporations and far-right conservatives rallying behind the judicial agenda of the Trump presidency.
Replacing Kennedy with Kavanaugh signals only the beginning of what will be a seismic and pivotal change within America; a process of change that will unravel at different paces over several decades. This change will affect every aspect of American life.
It will affect how the country does business, creates legislation, and even how the country interacts with its allies throughout the world. No part of American life, government or diplomacy will escape unscathed by this decision.
America is forever changed by this decision, and any nation-shaping decision that comes down to the discretion of Donald Trump and his loyal consultants and allies is a terrifying prospect indeed. Ultimately, we will see if this decision is simply an unfortunate bump in the road, or a disastrous and nation-altering one.
You may call me a pessimist but, unfortunately, I’m leaning toward the latter.