Elizabeth Drew
Following the US elections on November 3 – although its final resolution may take longer – the partisan arrangements of almost the entire US federal government are subject to change. Only the House of Representatives appears certain to remain in the same party’s hands (the Democrats’). The Republican-dominated Senate could be won by the Democrats. The conservative-leaning Supreme Court is now shifting far to the right, given the Senate’s confirmation of President Donald Trump’s nominee, Amy Coney Barrett, to the seat previously held by the late liberal justice Ruth Bader Ginsburg.
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One oddity of the US system is that even if Democratic candidate Joe Biden wins the election, overcoming barriers already thrown in his way by Court decisions and voter suppression, the presidency will remain for over two months in the hands of a man whose physical and mental stability are in doubt. The current constitutional arrangements to deal with presidential mental or physical incapacity are unworkable. Little is said publicly about this precarious situation; timorous newspapers are reluctant to mention the crazy uncle in the White House, even though Trump’s behaviour of late has been even more aberrant than usual, possibly an effect of having had COVID-19 and taking powerful medications.
Perhaps confusing the current race with that of 2016, Trump has resumed attacking Hillary Clinton, turning on his most subservient cabinet members for not indicting her, as well as former President Barack Obama, and Biden – for whatever reasons. Trump tosses around nebulous charges of left-wing terrorism and mail-in voting fraud, though The Washington Post has found his charges of ballot fraud fraudulent.
If Biden defeats Trump – the polls, currently in his favour, are considered more reliable than in 2016, but polls can’t predict voter suppression – his supporters’ celebrations may be short-lived. Controversies about counting votes are already in the courts, which have changed dramatically as a result of Trump and Senate Majority Leader Mitch McConnell appointing an astonishing 220 federal judges. Moreover, Senate Republicans are already plotting how to undermine a Democratic majority.
But the greatest threat to Biden and any progressive government for a long time to come will emanate from the Supreme Court. The approval of Barrett (age 48) has produced, almost certainly, a very conservative 6-3 majority. Chief Justice John Roberts, who has tried to keep the Court from going to extremes, will no longer have the controlling swing vote. The legitimacy of the Court is now in question.
The hearings on Barrett’s nomination were a sham. This was not because of her unresponsiveness to questions, but because the fix was in. Trump insisted that he had not questioned Barrett on sensitive issues. Trump, Barrett huffed, didn’t ask her about her position on such matters as abortion or the Affordable Care Act. Nor would she have discussed her positions with him. How dare anyone question her integrity?
It was all charade. Through the early spotting, close vetting, and years of cultivation of possible Supreme Court nominees by the right-wing, corporate-sponsored Federalist Society, which effectively controls who gets named to the highest bench by Republican presidents, Trump and his aides were fully aware of Barrett’s positions on key issues. (Liberal Democrats also have groups that back judges, but they are not as organised and effective as the Federalist Society.) The purpose of such intensive vetting is to have ‘no more surprises’ – no more Republican appointees who start out as conservative but move left. The example that most annoys conservatives was David Souter, appointed by George HW Bush. Souter was advertised as a conservative, but became a reliable liberal.
Behind the rush to get Barrett confirmed was Trump’s determination to have her seated by Election Day – so that, the president openly said, she would be in place if issues affecting the election came to the Court. Barrett refused to commit to recusing herself from cases that involved Trump’s re-election. The rush to confirm her was also a form of protection for conservatives in case the Republicans lose the Senate.
The claim of right-wing judges that their ‘originalist’ jurisprudence reflects judicial restraint and a reluctance to ‘legislate from the bench’ is also a sham. Originalism is seen by critics as a Trojan horse: it rationalises an activist role of striking down progressive legislation such as environmental, labour, and other regulations, on the grounds that no mention was made of such matters when the Constitution was written.
The Barrett appointment is also another reflection of the religious right’s hold on American judicial conservatism. Perpetuation of this arrangement is a major reason Trump has retained evangelical support, albeit with some recent slippage. Barrett’s Catholicism, indeed, is of the ‘radical,’ ‘ultramontane’ sort that sometimes appears to oppose change itself. She has been involved in a charismatic Christian group, People of Praise, which believes that in households men are superior to women, and its members speak in tongues. Though the group removed all references to Barrett from its public documents, a snippet of one has her once serving as a ‘handmaid,’ a leadership position.
As for abortion, one does not win the Federalist Society’s support unless one has raised objections to Roe v. Wade. With Barrett joining other conservative justices – including Trump’s two other appointees, Neil Gorsuch and Brett Kavanaugh – it is now possible that Roe may be overturned – or nullified through other decisions.
With an unprecedented 60-plus million Americans having already voted, it may be too late for Trump to turn things around. So, with winter coming on, COVID-19 cases reaching all-time highs, and the White House having given up on controlling the pandemic, anxious Americans are left speculating not only about who will win the election, but, for the first time in history, whether the president will honour the result and if the Supreme Court will abet him in subverting it.
The writer is a Washington-based journalist and author. ©Project Syndicate
