Troubled sleep: Trump will get to put in at least one Supreme Court justice. in The Amalgamated Aggromulator

More like troubled waking. Troubled Sleep is a Jean-Paul Sartre novel.
Don’t read this one if you dread a mood plunge. I am foolish enough to set my alarm and answer it and drink coffee so that I can play stenographer to the news.

The highest law in the U.S. is now in reach - will now be in the grasp - of Donald Trump and the Trumpers, and of the hard-right constellation that is riding them.

Breaking news yesterday morning: Justice Kennedy is retiring, effective in July. (We were all nervously watching 85-year-old Ruth Bader Ginsburg.) (We still are.)

Trump has time to nominate a replacement for that Supreme Court seat well before the Congressional election in November, and the Republican majority in the Senate, which is supine before Trump, will almost certainly be able to confirm the nominee.

(“Almost certainly” is grasping at straws - if absolutely no Democrats vote to confirm, and if we can pry off a couple of Republicans, it might not happen. Truly grasping at straws. When Republicans get everything they want if they get a solidly right-wing Supreme Court - for decades - and when that objective was the reason why so many even wavering Republicans went for Trump, no Republican senators will want to fundamentally betray their entire side by defecting.)
(As for the question of obstructing any vote on the nomination - when, after all, McConnell brazenly blocked any vote on Obama’s Supreme Court nominee Merrick Garland just because, so that Trump would end up able to fill the seat with Neil Gorsuch - well, I originally had a rather flailing though not hopeful paragraph about that possibility here, but really the Democrats are in the minority and so don’t have the option of any such mirroring obstruction. See here for details, but basically that’s it.)

Trump has already put Gorsuch in, and the Court has detectably changed. He will now be able to put in a second justice - a more significant one, because this time he’ll be replacing the perpetually varying bellwether Kennedy with a reliable rightist . . . and the conservatives will have the votes to reshape anything that comes up before them.

A double factor:
Trump will pick any nominee based on fealty to him.
The commitment to Donald Trump he’ll want can be expected to be associated with a certain level of sophistication of intellect/handling of ideology.

There are correspondingly two distinguishable levels of worry.

The U.S. Constitution and what it does and doesn’t mean are the ultimate check on Donald Trump. The Supreme Court is the institution by which we decide what the Constitution does and doesn’t mean. If he has a Supreme Court that will vote his way on any important matter than comes up, then the Constitution effectively supports Donald Trump.

(Suppose Trump pardons himself. That’s a question for the Court. Suppose Trump loses the election and says it was rigged and invalid. That would go to the Court.)

And present-day American “conservatism” - which is not conservative in many senses of the word at all - wants to tear down a lot of the forms of modern American society. Including many of the forms where it had formerly said it was merely concerned about the management and execution. Things are a lot more naked now. (To the amazed, horrified surprise of a lot of now-often-former Republicans who had taken the surface at its word.)

Example: Instead of Obama’s blocked nominee Merrick Garland, Donald Trump put in Neil Gorsuch.
Two days ago the Court upheld Trump’s third, massaged travel ban, on the grounds that nothing in it refers to bigoted animus . . . never mind President Horse’s Mouth’s frank and incontinent professions of bigoted intent in establishing that ban.

(For details, a lawyer I read explained that the Court did this by choice of filter:

The rational basis test is the test your mother applies to determine whether you are a nice boy. Of course you are. The rational basis test asks only whether there is ANY plausible non-discriminatory basis whatsoever that could be articulated to support the law.”

Mark that “ANY” - the basis need not even be a good one. The choice of countries on the list has little intelligible to do with effective countering of terrorism, or national security strategy, or anything coherent. The majority said we had to trust the government on that bit.)

But this result comes from underlying things that have been present on the Court, things that can now find expression in majority decisions. Chief Justice Roberts has long had the perspective that attempts to restrain or compensate for the effects of bigoted discrimination are more offensive than the bigoted discrimination itself. And now that perspective will be able to truly find its voice.

As Adam Server observes,

By Roberts’s logic, cornerstones of Jim Crow law, the grandfather clause, and the literacy test would be entirely constitutional. Grandfather clauses barred people from voting if they could not vote prior to emancipation, but there were free black Americans prior to the abolition of slavery, and there were blacks capable of passing literacy tests in states where those tests were not deliberately impossible to pass. These laws did not affect *all* black voters, and neither did they explicitly mention race—so, to apply the tests Roberts has proposed, these devices, meant to secure white supremacy in the South after Reconstruction, were not discriminatory.

Whatever message the Court intended to send, the one that Trump and his administration will take from the ruling is that the president is free to implement any discriminatory policy he likes, so long as his advisers launder the president’s bigotries through facially neutral language.

“Launder.” Le mot juste.

The view from this laptop, at this moment, is that it’s not going to be resentful batty-conservative obstruction anymore. Congress - and any right-wing group that takes a case to the top - will be able to dismantle, and will give the Court an opportunity to dismantle.

Dismantle the things I’ve liked about this place. Dismantle what had become the American story. Even dismantle the aspirational America that was what our friends and allies so loved and strangely trusted even when the real America was doing some damn strange things. They believed we meant well - that we believed in meaning well. And of course the spirit of the Declaration, “created equal,” “certain inalienable Rights,” the soul of the United States of America.

. . . It is not a sanguine moment here. And of course the world isn’t ending and the fight goes on, and we do have an election in November. But this is a strategic moment, one that is akin to seeing the prow of a supertanker that we will be spending our next decades watching without seeing the stern.

It’s the highest law of the land.

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Last updated June 28, 2018