I’ll See You in Court
It’s not about the presidency; it’s about the Supreme Court.
I don’t know how many times I said this during the 2016 election cycle, or thought it while reading Facebook posts and comments, usually having to do with why people couldn’t bring themselves to vote for Hillary Clinton. It got to the point where I felt as if I were walking around mumbling it in response to any question I was asked. “Did you see last night’s episode of Drag Race?” But the Supreme Court! “Would you like fries with that?” But the Supreme Court!
And now here we are.
On July 9, Trump is expected to announce his nominee to replace retiring justice Anthony Kennedy. This is his second opportunity to change the makeup of the Court, having already seated Neil Gorsuch.
Naming two Supreme Court justices is not unusual for a president. Every president in my lifetime has appointed at least this many, with the exception of Gerald Ford, who named only one. Nixon and Reagan appointed four. Obama should have had three, but thanks to Republican shenanigans was prevented from having this third even considered, handing Trump his first opportunity just days after his inauguration.
What makes the current situation so perilous, of course, is that the retiring Kennedy was often the swing vote that decided landmark cases, including ones about gay marriage, abortion rights, gun control, the death penalty, voting rights, and corporate donations to political campaigns. Trump is most certainly going to replace him with someone far more likely to side with the conservative wing of the Court.
The other concern is the age of the current justices. Liberal justices Ruth Bader Ginsberg and Stephen Breyer are 85 and 79, respectively, while Sonia Sotomayor and Elena Kagan are 64 and 58. On the conservative side, the oldest justice is Clarence Thomas, 70, followed by Samuel Alito (68), John Roberts (63), and Gorsuch (50). With the average age of retirement for recent Supreme Court justices being 80, the conservative wing could be around for a long time, while the liberal wing is standing on somewhat shaky ground.
My social media has been filled with friends in a panic about all of this. And yes, it’s worrisome. The list of potential nominees that’s been bandied about is not encouraging, and the same Republicans who refused to allow Obama his right to have a nominee considered with reasonable speed are absolutely going to insist that Trump’s pick be voted on quickly before a wave of new, angry Democrats flood the Senate following the midterm elections.
Just as Ruth Bader Ginsberg’s continued well-being is of utmost importance for those of us who favor the liberal side of the Supreme Court, our greatest hope for preventing a disastrous second Trump addition to the bench may well be in the hands of two other powerful women, Republican senators Susan Collins of Maine and Lisa Murkowski of Alaska. Collins and Murkowski prevented the attempted Republican repeal of Obamacare by breaking with their party, and both have shown that they’re not particularly interested in being popular with their fellow Republicans or even with their constituencies back home.
Regardless of the outcome, most pundits predict that we’re going to end up with a much more conservative Supreme Court, and for a very long time to come. Hence the hand-wringing and worry. Speaking about the weight her vote holds, Collins told the website Politico, “It’s not the assistant deputy secretary for weights and measures at the Commerce Department. This is a lifetime appointment to the highest court in the land. It matters.” I wish more voters had thought it mattered during the presidential election.
As distressing as this is, I was reminded this week by an old activist friend from the ACT UP days that this is hardly the first time we’ve faced this kind of fear and dread. “It just feels worse because we thought it was behind us,” he said. “We thought we’d won the battles. But people haven’t even begun to see angry yet. We survived Reagan and two Bushes. We’ll survive Trump, too.”
We will. And I’m encouraged by how much activism I see happening. So many marches. So many protests. So many people asking, “How can I make a difference?” Even more encouraging, a lot of these things are being spearheaded by young people. Two weeks ago, a friend stood with his teenage daughter at a protest against ICE. Several others braved the heat to protest in Washington on June 30. Young people all across the country are finding their voices, and many of them will use those voices in November when they vote for the first time.
Our representatives are supposed to reflect the people who put them in office. Given what I’ve seen from his supporters, Trump certainly does. But let us not forget that close to 3 million more popular votes went to Clinton than went to Trump. Those 3 million voices are rising and being joined by more and more every day. So whatever happens with Trump’s next Supreme Court pick, it may be the beginning of another battle—but it won’t be the end of the world.▼
Michael Thomas Ford is a much-published Lambda Literary award-winning author. More Michael Thomas Ford