Why A Trump Defeat Won’t Pinch Conservatives That Hard Now

Arihant Pawariya

Oct 27, 2020, 06:21 PM | Updated 06:21 PM IST

US President Donald Trump.
US President Donald Trump.
  • Even a humiliating defeat will not pinch the conservatives as strongly as it would have, had they not ideologically flipped the Supreme Court in their favour.
  • Judge Amy Coney Barrett became an Associate Justice of the United States Supreme Court on Monday (26 October) after the Senate confirmed her appointment by 52-48 votes, with not a single person from the Democratic party voting for her.

    The confirmation of justices by the Senate are usually a bipartisan affair even though the hearing proceedings have become increasingly contentious over the years. But it’s the first time that a justice to the top court in the US has been appointed without getting a single vote from the other party.

    In the nine-member bench, Barrett will fill the seat of Ruth Bader Ginsberg which became vacant after the liberal judge passed away last month. Republicans, who hold the majority in the US’ upper house which is constitutionally vested with the power to confirm judicial appointments made by the President, moved with great alacrity and ruthlessness to fill the vacancy.

    They have succeeded in doing so just eight days before the election. This is also unprecedented. The same bunch had blocked from confirming former President Barack Obama’s nominee saying that such vacancies should not be filled in an election year. But as Democrats are finding out much to their dismay and heartburn, it isn’t the principle but sheer power of numbers that matters.

    Republicans had the majority in the Senate in 2016 and they used it to block Obama’s nominee. They have the majority now as well and they have used it to confirm Trump’s nominee.

    “Elections have consequences,” as Obama famously reported to have said to Republicans shortly after becoming President in 2009, and which has become a favourite phrase of the conservatives to take a swipe at Democrats every time they score one over them.

    Barrett’s confirmation means that the US Supreme Court bench is now strongly tilted towards the right. Out of the present nine justices, five have been appointed by Republican presidents, three of which by Donald Trump in the last four years alone.

    However, one of these five conservative justices, John G Roberts Jr, who is also the Chief Justice, has been siding with his liberal colleagues on the bench for the last few years attracting accusations of being a ‘closet liberal’.

    In some of the important rulings of the SC recently, he has voted with liberal judges to expand LGBTQ rights, protect the young immigrants known as ‘Dreamers’, strike down a Louisiana abortion law, (voted twice to) continue Obamacare and in support of mail-in ballots which Trump has rallied against. Though these are mostly political issues, when it comes to ideological matters, he has also voted with conservatives, for instance, to give religious schools the same access to state-aid as secular schools.

    As highlighted by the New York Times, Roberts has positioned himself as a centrist and “has been in the majority in every one of the 11 rulings decided by 5-to-4 or 5-to-3 votes so far this term. No chief justice has been in the majority in every closely divided case over an entire term since Chief Justice Charles Evans Hughes in the term that ended in 1938 — and that was in only four cases.”

    In this light, Barrett’s confirmation should be seen. Even if Roberts continues to take liberal positions, he may no longer be able to influence the outcome as he has been able to do till now. The court will have at least five solid ‘right’ voices starting today.

    More importantly, even if Donald Trump and Republicans lose the White House, Senate and the House on 3 November as polls are predicting (though, this author is extremely sceptical of this outcome), even such a humiliating defeat will not pinch the conservatives as strongly as it would have, had they not ideologically flipped the Supreme Court in their favour.

    If Joe Biden becomes president, it is highly unlikely that the court’s composition will change in the next four years. The oldest member on the bench is 81-year-old Justice Stephen G Breyer, who is a liberal. Even if he retires, the court’s ideological balance will remain strongly in favour of the conservatives.

    The oldest conservative justice in the Supreme Court is Clarence Thomas who is only 72 years old and is not likely to retire even if Biden or Democrats remain in the White House for two terms.

    However, if Trump wins again, he may be able to appoint another justice (given Breyer’s age). Essentially, the Republicans have only upside from here on.

    At least for a short term, for the first time in decades, conservative judges will form a strong majority. This could have grave consequences for Democrats as many important cases will be coming before the bench for decisions such as the validity of Obamacare, adding a question to the census, Trump’s immigration policy, his tax returns, final date of sending mail-in ballots, etc.

    In fact, given that political pundits are calling it a touch-and-go contest in battleground states, the Supreme Court could play a decisive role in the outcome of the 2020 presidential election as it had done in the 2000 election which gave a razor thin victory to George Bush.

    Arihant Pawariya is Senior Editor, Swarajya.

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