Blocking Trump by Freezing the Court

Owing to the Democratic Party’s all-to-clever subversion of the primaries, party leaders’ insistence, rank-and-file be damned, on making Hillary Clinton their candidate for president, and the terrible campaign their terrible candidate ran, we now face the prospect of a solidly Republican Congress and the sociopathic Donald Trump as president. It’s a toxic situation in which whatever laws the most whacked out Republicans want to pass, whatever programs they want to eliminate, they can push through, and President Trump will sign it into law.

It seems like a desperate situation, one that will lead to accelerating climate change, gutting of our civil liberties and important rights like abortion and equality for all, and probably to mass deportations of so-called “illegals.”

But there is a way to fight back. There is, at this moment, one branch of the federal government that the Republicans and the new president don’t control, and that could block many of the worst actions of the branches that they do control: the US Supreme Court.

Thanks to the gluttonous behavior of the porcine and paleo-conservative Justice Antonin Scalia, who overate on one of his many put-it-on-the tab junkets and died in the splendor of his free presidential bedroom, the court is currently split 4-4 between arch conservatives and liberal justices.

All that has to happen now is for the four liberal justices to stay healthy for the next four years, and for the four conservatives — or at least one of them — to follow in Scalia’s heavy footsteps, whether by retirement or mortality, and we’d have a liberal 4-3 court.

Well, okay, I oversimplified. This ideal scenario actually requires one more thing: an uncharacteristically feisty and determined Democratic bloc in the Senate that simply refuses to approve any new picks for the Supreme Court, and that instead leaves things as they are as justices die off or retire.

The Democrats have every reason to stand firm. It has after all been the Republican strategy to leave the top court shy one justice since Scalia’s demise last February 13, even refusing to consider an unquestionably qualified replacement, Merrick Garland, nominated by President Obama way back on March 16, or, in most cases, even to meet with him informally, but for all federal court appointments. But even before Scalia’s death, Republicans were pulling the same stunt with lower court appointments at the district and especially the appellate level.

Democrats would need to adopt this same obstructive strategy of just refusing to even consider any Republican nominees on the Supreme Court. (They should probably follow the example of the Republicans and refuse to consider nominations for any federal court position, just to prevent those lower courts from moving rightward.)

Now you might well ask, “But what if a liberal justice dies first?”

I agree that would be a catastrophe, but I think the odds are against it. Justice Steven Breyer is 78, but he seems quite healthy looking — even young for his age. His weight is normal, maybe even on the thin side, but not abnormally so, and he seems to like his job. Given the excellent health care available to to government officials, it’s easy to imagine Breyer staying healthy and on the job at least through Trump’s first term, and probably even, perish the thought, through a second Trump term. Justice Sonia Sotomayor, at 62, is a spring chicken of a justice, and should be an easy bet to go the distance. The same for Elena Kagan, who’s a spry 56. The real concern is with Justice Ruth Bader Ginsburg, who at 83 is the court’s oldest member. Ginsburg is a cancer survivor — she’s had both colon cancer and pancreatic cancer — the latter operated on in 2009. These are both cancers that have relatively poor survival rates, especially pancreatic cancer, but Ginsburg’s cancers were both caught early and in both cases, her prognosis is at this point pretty good.

My own feeling is that this most consistently liberal member of the court is such a tough-minded and dedicated fighter for civil liberties, justice and for equality under the law that much like William O Douglas , who held out on the High Court for 35 years until his poor health forced him to step down, she will not allow herself to die or become too sick to quit while Trump remains president.

That means that the best Trump and the Republicans in Washington can hope for are tie votes on the high court. So if progressive lawyers are careful to bring their suits against repressive or regressive Republican laws and regulations in the most liberal possible Appellate Circuits, and if they win those cases at the Appellate level, a tie would leave any decision where it was at that lower level.

Meanwhile, the prospects for a reduction in numbers on the Republican / conservative side of the Supreme Court bench are actually relatively good. Justice Clarence Thomas, known for sycophantically following in the footsteps of his mentor Scalia, has done so also in terms of his personal health. Nearly as obese as Scalia, Thomas clearly is a man who like Scalia enjoys his freebies and junkets, including the free eats. Though only 68, he’s not the kind of guy you’ll see jogging in the morning through a Georgetown park or playing a rough game of tennis. (My guess is Ginsburg would beat him in either sport.)

So there’s always the chance Thomas will follow Scalia to face his own judgement at the Pearly Gates, where he’ll have to answer to St. Peter for his rulings. (I wonder how Scalia — the justice who famously said that evidence of innocence was not necessarily grounds for granting a doomed convict a right to a new trial — made out there?)

Then there’s the most moderate of the Republicans, Justice Anthony Kennedy. At 80, the court’s second-oldest jurist, Kennedy has been on the court now since 1988, a total of 28 years. If he stays on, it’s not the worst thing that could happen. He was already the swing justice on many cases, siding often enough with the liberal justices to give them 5-4 victories even when Scalia was still alive. He has trended more liberal as he has aged, and could continue moving in that direction, which would effectively produce a 5-3 liberal court. But while he seems quite healthy and fit, this Reagan appointee to the court has served on the Supreme Court for 28 years, and there are rumors out there that he’s thinking of stepping down next year, which would make it a 4-3 liberal court.

Meanwhile, Chief Justice John Roberts, while a healthy looking guy at just 61, does have a history of at least two serious seizures, one in 1993, and a second in 2007. This, according to some doctors, shows strong evidence of epilepsy, though he has reportedly not been diagnosed with that disease. Nonetheless, his seizures have been dramatic — in the second one, he fell nearly 10 feet onto a dock near his summer home on Hupper Island, ME. What this means in terms of his tenure on the court is unclear. It is not uncommon for victims of serious seizures to suffer severe injuries, including to the head. On the other hand, there are medications that can control certain types of seizures, and so Roberts could keep his seat on the bench for a long time.

Justice Samuel Alito, a healthy 66-year-old, seems like he’ll be on the court for some time to come, filling out the right side of the bench.

But viewed in this way, it looks like, if I’m right and Justice Ginsburg’s liberal spit and vinegar keep her going, and if the Democrats show more gumption and conviction than they usually can muster in the Senate and just refuse to approve any Trump appointees to fill vacancies, the Supreme Court will be in a position to block much of the Trump/Republican agenda, either by winning over Justice Kennedy on key issues, or by a loss of just one more member of the conservative block of four men in black.

It might be good, though, just as a precaution, for the four liberal justices to hire food testers.

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Dave Lindorff is a founding member of ThisCantBeHappening!, an online newspaper collective, and is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).

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