If a conservative U.S. Supreme Court becomes President Donald Trump’s greatest legacy, rolling back the rights of women and minorities in a manner reminiscent of a certain Margaret Atwood novel, it will make Barack Obama ’s presidency look like a footnote.
The likelihood of that happening rose significantly this week as the highest U.S. court issued three decisions that would almost certainly have gone the other way had Mr. Obama succeeded in naming Judge Merrick Garland to the top bench in 2016. The court upheld Mr. Trump’s travel ban preventing visitors from certain predominantly-Muslim countries from entering the United States, it ruled that public sector unions cannot force dissenting members to pay dues and it struck down a California law that required faith-based pregnancy centres to inform women of their right to an abortion.
All three decisions were decided by 5-to-4 votes that would have gone the other way had Justice Garland made it on to the court. But Mr. Obama was hopelessly outplayed in 2016 by Republicans, who argued that the then-Democratic president had a moral obligation to refrain from naming a replacement for the late Antonin Scalia during a presidential election year. Mr. Obama barely put up fight.
For the U.S. right, the cherry on the sundae of this week ’s court rulings, made possible by Mr. Trump’s nomination last year of Justice Neil Gorsuch to the top bench, was Justice Anthony Kennedy’s unexpected announcement that he will retire next month.
Liberal Democrats now squeal that Mr. Trump has a moral obligation to hold off from naming a successor to Judge Kennedy, a moderate conservative who typically sided with liberals on abortion and minority rights, until after November’s midterm elections. The President will laugh them off all the way through Senate confirmation hearings for his second Supreme Court nominee barely 18 months into his presidency.
Besides, the 10 Democratic senators up for re-election in states that Mr. Trump carried in 2016 are not about to do or say anything that angers the President’s supporters before the November vote. They are running scared as it is. Social conservatives are set to turn out in droves now that the holy grail of anti-abortion majority on the court is within grasp. They want to keep the Senate in GOP hands, providing them with extra insurance if another seat on the court opens up before the 2020 presidential election.
To non-believers, it was something of a mystery in 2016 that white evangelicals would line up in such numbers behind a presidential candidate who seemed to break several of the Ten Commandments on any given day. But that support – more than 80 per cent of white evangelicals ended up voting for Mr. Trump – was a means to an end. For the U.S. religious right, it’s payback time.
“They took a risk, and now the reward,” Tony Perkins, the head of the anti-abortion Family Research Council, said this week after Mr. Trump indicated he will move swiftly to name a top court judge from his already-prepared list of conservative candidates. “You’ll have a solid five votes for life.”
It will be six if Ruth Bader Ginsburg, the 85-year-old liberal lioness, retires or dies during Mr. Trump’s presidency. While Justice Ginsburg remains a cogent defender of women’s and minority rights, she really should have retired while Mr. Obama was in office to prevent her spot from being filled by an anti-abortion judge. That prospect looms ever larger as Mr. Trump moves increasingly to solidify his political base en route to 2020.
Shaping the Supreme Court for a generation, which could have been Mr. Obama’s legacy, is now set to become Mr. Trump’s. Mr. Obama made two strong appointments – Sonia Sotomayor and Elena Kagan – but they replaced only slightly less liberal justices than themselves. If Justice Kennedy had retired during Mr. Obama’s second term, and the Obama White House had forced a Senate confirmation vote for Judge Garland, the rights of women, LGBTQ citizens and minorities would not be in jeopardy now.
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. States that seek to reimpose bans on same-sex marriage are more likely to see such bans validated. Union rights will be gutted further. And limits on political donations may go by the wayside altogether. After all, what epitomizes free speech in the eyes of American conservatives more than the right of the rich to buy elections?
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.