Winter is Coming
I have, in the past, in this space shared with you items which constituted good news – almost always at the hands of the courts – in the midst of the gathering twilight (indeed I inadvertently used almost the same headline twice when writing about that). But this time, I’m being more therapeutic for myself, I guess, giving voice to my inescapable since of dread and doom. The fountain from which our few remaining blessings flow is about to be poisoned, quite possibly, for the rest of my life.
As you no doubt know by now (if you’re paying attention, and if you aren’t what the hell is even wrong with you?) Justice Anthony Kennedy announced his retirement from the court this week giving Trump, in all likelihood, a relatively unmolested chance to put a much more right wing replacement on the court which will be a devastating blow to liberal social equality efforts (to say nothing of the desire to reign in predatory big business practices).
To be clear, though Kennedy occupied the ideological center-seat on the court, he was no moderate. That he held the center only serves to illustrate how far right the conservatives on the court are. An independent rating (conducted before Gorsuch was seated) of all the justices to serve since World War 2 placed him as the 10th most conservative justice during that time. That means that three of the others are in the top 10 (and really, four now since Gorsuch is also to his right) and the one who is next seated may very well be to the right of all of those. However, while he routinely upheld conservative doctrine in basically every other case, he had a weakness (as conservatives perceive weakness) when it came to issues of that which is often derisively called “social justice.” Even here, he was by far not a reliable ally (witness “Masterpiece”) but he was at least willing to be moved. Without him, there would have been no Obergefell, no Windsor, no Lawrence to mention just the gay-equality cases.
Here’s a look at the future and just how dark the skies are. As things currently stand among the remaining eight:
*four are age 64 or younger (two on the left, two on the right);
*two are advanced in age (Stephen Bryer, 79, and Ruth Bader Ginsburg, 85) who are both liberals and who will both strive to cling to life, and to their seats, until at least 2021;
*and the other two on the right are Clarence Thomas who is 70, and Samuel Aleito who’s 68.
There’s some speculation that Thomas may not want to spend the rest of his healthy life on the court and it’s fair certain that if retirement is on his mind, it will happen next year so that he can – as Kennedy did – give Trump maximum leverage to replace him, albeit this choice might turn on whether the senate majority changes since he’d be making a calculation about just how conservative a replacement could be seated. But assuming for the sake of this discussion he does, that would allow Trump to seat a third relatively young justice. That would mean a total of four on the right under 60 plus Aleito who’d be expected, health permitting, to remain at least a decade longer.
So even if one assumes a Democrat is elected in 2020 and is able to replace the two elderly liberals, the five vote conservative majority is firm – barring unexpected death or disability – until 2030 or longer. If, god help us, Ginsuburg should pass and give the conservatives yet another younger justice, it might be 2050 or later before you have a chance to even balance the court again, let alone shift it to the left of center.
Why is this so horrifying? Because every one of those gains in the courts I’ve told you about lately, largely depending on Title VII and Title IX, is subject to review by SCOTUS. If any of those cases is taken up the odds are extremely low that they will not be overturned. If the Court kicks Title VII and Title IX out from under us, we literally have nothing left in red states. Like abortion, you’ll quickly see the country devolve into a “two Americas” situation where equality (and reproductive rights) are respected on the West Coast, and Northeast from DC – but almost nowhere in between. Minnesota, Illinois (which is still controlled by the votes in Chicago despite being a red state as you go south, and Colorado/New Mexico would be the only islands in “flyover country” that respected our rights.
And I really fear that it is simply too late. It would still be possible to pick at the margins, try to expand the list of states with state laws protecting us from discrimination (Virginia maybe? Florida in time?) but that’s a long hard slog. Most of the states who’d even consider it have already enacted it. We’re in for a world of hurt, fam, and have very little leverage. Be sure to look up that Trump loving trans friend who told you he would do us not harm and give her a good cussing.
Photo by: brownpau