As I stood beside the podium, preparing to speak out against the previous day’s Supreme Court decision, which upheld the Trump Administration’s travel ban targeting several predominantly Muslim countries, a familiar buzz in my pocket signaled breaking news. I hesitated to check my phone at first, knowing that it would soon be my turn to speak. But, eventually, my curiosity got the better of me. Immediately, a cavernous pit formed in my stomach as my eyes beheld the words on my screen, “Justice Anthony Kennedy announces retirement, effective July 31st, 2018”. In a moment, the past month of Supreme Court opinions became a backdrop to an even bigger fight looming on the horizon.
Throughout the month of June, I handled the rapid response to Supreme Court decisions as part of Nevada’s chapter of the Why Courts Matter campaign. Born out of the unprecedented shunning of Merrick Garland’s nomination to the Supreme Court by President Obama, Why Courts Matter is a national campaign dedicated to educating and empowering the public on the process and importance of our nation’s federal courts. The Highest Court in the Land wrapped up the end of its term this month, delivering quite a few decisions that made us progressive folks groan, at best, and fear for the future of our country at worst.
Whether it was indulging bigoted baker Jack Phillips’ perceived persecution complex in the Masterpiece Cakeshop decision or upholding Ohio’s voter registry purge in Husted v. A. Philip Randolph Institute, progressives faced many disappointments. SCOTUS punted on the issue of partisan gerrymandering in Wisconsin and Maryland, while also deciding that racial gerrymandering in Texas was no cause for alarm. Of course, there was the aforementioned case of Trump v. Hawaii, in which the Trump administration’s racist travel ban withstood yet another legal challenge. That decision was joined by an especially odious decision in NIFLA v. Becerra, that went above and beyond to protect the speech of “crisis pregnancy centers”, or phony, unlicensed clinics that pressure women not to pursue abortion. The Court closed out their term by reversing a long-standing precedent and striking down public sector union fees charged to non-members to cover the costs of collective bargaining in Janus v. AFSCME.
In each of these decisions, the fundamental rights and institutions of a progressive, forward-thinking society coming under attack by corporate power and far-right culture warriors.
And the consequences could not be more real.
Public sector unions, which stand as one of the few remaining bastions of justice for working families, have now lost a major source of revenue that will hinder labor organizing going forward. Women across the country will have no expectation of professionalism from a fake doctor telling her lies about her pregnancy, under the guise of medical advice. Religious fundamentalists will be emboldened to deny service to LGBTQ Americans and Muslims will continue to live with the knowledge that national security could justify stripping them of their rights.
But with Justice Kennedy retiring, and therefore giving Trump yet another Supreme Court pick, the fight to preserve our progressive vision just became even more dire. While Kennedy was certainly a conservative, his vote mattered when it came to supporting the Clean Air Act, legalizing same-sex marriage, and preventing the rollback of Roe v. Wade. The latter item is particularly important, as then-candidate Trump promised that his short list of pre-approved nominees would all pass a simple litmus test: they would support the reversal of Roe.
The nominee is expected to be announced on Monday, July 9th. In ideal circumstances, progressives would hope for a fair-minded individual, who values justice for all Americans, and will interpret the whole Constitution in a way which achieves the most equitable outcome for everyone. Unfortunately, Trump’s track record of nominating federal judges has fallen quite short of this standard. His picks have largely been less qualified, less diverse, and often on the side of corporations, rather than the planet or people. If confirmed by the Senate, the nominee will serve on the Court for life, and given the young age of many on Trump’s short list, that could spell decades of conservative control of the Supreme Court.
It’s a bleak picture. But if progressives and other advocates harness the energy they’ve built through sustained collective action, from fighting attacks on the Affordable Care Act, to protesting the horrific human rights abuses occurring at the Southern border, we stand a chance of creating enough pressure to protect the Supreme Court from another narrow-minded, elitist sitting on the bench. Supreme Court nominations are never a sure thing. Just ask Harriet Miers, Robert Bork, or Douglas Ginsburg. The possibility of getting a suitable justice is real, as long as progressives understand why courts matter.