The New Supreme Court

By Hank Silverberg

Brett Kavanaugh is now a Supreme Court Justice. He was sworn in just a few hours after the Senate gave final approval to his nomination.

The media continued to focus on what Maine Senator Susan Collins said, or how Democratic Senator Joe Manchin from West Virginia bucked his party and voted in favor of Kavanaugh, or how big of a success the appointment was for Donald Trump.

Only a few news organizations, including The Washington Post, reported that the D.C. Appeals court clerk forwarded more than a dozen complaints of “judicial misconduct” against Kavanaugh in recent weeks to Chief Justice John Roberts. Roberts chose not to forward them to a judicial panel for an investigation. (Not surprising, since it was Kavanaugh, as a lawyer in George W.

(Chief Justice John Roberts,
SCOTUS photo) 

Bush’s White House, who recommended Roberts for the high court in 2005. Mr. Bush writes about the recommendation in his book.)  

What the media also hasn’t looked at, and hopefully will start doing now, is how this court, with a distinct 6-3 conservative majority, will reshape American law. Roberts will have much more power as the man in the middle, with four strong fellow conservatives on his right, and four moderates and liberals on his left.

The changes will take place slowly as cases come up, but in a decade, the shift will be obvious to      Americans in all walks of life.   

I am not a lawyer or a constitutional expert, but here are some issues that hang in the balance based on what the Conservative movement has pushed for the last 30 years. There is no certainty on what the court will do. Justices sometimes surprise everyone and don't vote totally on ideology. Conservatives, though,will look for strong cases over time to challenge existing law. 

1) Gun control: no matter who controls Congress after the mid-term elections, it is likely all gun control legislation, including long established restrictions, will end up before the court soon with gun advocates most likely coming out winners.

2) Abortion: Roe Vs Wade, the 1973 case that legalized abortion, may stand up to the test even with this court, but laws that allow more restrictions on abortions, especially those passed by individual states, are likely to pass muster with this conservative court.

3) Affirmative Action: the current court has already weakened the concept further. It’s likely those who oppose it are chomping at the bit waiting for the right case to put Affirmative Action in its grave.

4) Gay rights/same-sex marriage: conservatives have challenged laws of this type for decades. The new makeup of the court means more cases are likely to be heard to weaken such laws, if not abolish them. And the cases will be more complex than denying gay couples a wedding cake.

5) The Establishment Clause: that’s the part of the First Amendment that prohibits the establishment of an official religion in the United States. It led to the Engel v Vitale case in 1962 that restricted prayer in public schools. That case didn’t ban prayer as the "right" has argued. It just told schools they couldn’t force students to participate in religious activities. As a result, over time, many school districts simply got rid of the prayer to avoid conflict. Subsequent rulings based on the 1962 case have restricted public religious displays like crosses or creches, on public property. Conservatives, backed by the religious right, have long pushed for a roll back on the Establishment Clause rulings. It is likely this issue will be challenged again now.

6) Citizens United vs FEC: this was the case that basically declared that corporations and labor unions were people and their rights to donate money to causes or candidates could not be restricted based on the First Amendment. It is likely this case will be pushed by conservatives to eliminate most campaign finance laws so that people (read rich people), can donate as much as they want, any way they want.     

7) Miranda Vs Arizona:  your right to remain silent and to have an attorney has been the law since 1966, but conservatives have long blamed it for an increase in crime and recidivism. They consider it a benefit to mostly poor people, so there will likely be an attempt to overturn that as well. (I suspect even this court won’t take up a challenge to Miranda, but conservatives WILL try if they have the right case.)

8) Age and sex discrimination: such cases have always been hard to prove. It's likely this court will refuse to hear anything that even touches on the subject, leaving some very sketchy laws as they are.

   

There are many more issues like these that could come before the new court. That is why the battle over Kavanaugh’s appointment got ugly even before the allegations of sexual misconduct, and why the GOP blocked President Obama’s appointment of Merrick Garland to the vacant seat in 2016.   

The election of Donald Trump has given the conservative movement cover. While many on the left and in the media are focused on Trump’s ad-lib amateur foreign policy, outrageous twitter attacks, and his personal peccadilloes, conservatives have been salivating as they dismantle most of the progress that has been made over the last 40 years. It has already happened with environmental regulations and policy. Education is in the cross hairs, and now your individual rights will face repressive scrutiny by the high court.

It is not surprising that hate groups are coming out of their caves to spark violence in the streets or vandalize synagogues and mosques.  The “right” is trying to turn back the clock and

(JCC, Fairfax, VA vandalized this past week, Photo courtesy Sen Tim Kaine)

that gives these fringe groups hope.  So, what can be done to combat this?

Use the ballot box. There is an election next month for Congress and some Senate seats that could turn control over to the Democrats and take away Donald Trump’s rubber stamp. If that happens, the march backwards will not occur as fast and may indeed be stopped.

It is clear that some people will read this blog and start yelling about everything that's wrong  with Progressives. They will scream “snowflake” and a bunch of other insults and blame “the left” for every bad thing that ever happened to them.

They are simply misguided.  Human beings do not benefit from stagnation, nor do they benefit from repression or regression. The dialect of human existence must move FORWARD, not backward.   

The good old days were only good if you were white, male and protestant, like most of the Republicans on the Senate Judiciary Committee. Millions of Americans don't want to go back to the way it was and it's time they flexed their political power.    

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