Tipping the Scales
April 10, 2017 4:08 pm by Jacob McAllister
Republicans in Congress Go Nuclear to Tip the Balance of the Court
They got their man.
Neil Gorsuch was confirmed to the Supreme Court on Friday, on a party line split, 54-45. This ends the over year long period of stalemate in the Court, with the balance of power now tipped 5-4 in favor of more conservative justices. To confirm Gorsuch, Republicans in the Senate invoked the nuclear option, lowering the threshold needed to confirm a Justice from 60 votes to a simple majority. There is no turning back now…
This vote comes after GOP members of Congress stonewalled Merrick Garland, Barack Obama’s nominee for the seat that was vacated back in February of 2016. Their reasoning for leaving the seat vacant was that Obama was a lame duck president, in his last year, and the incoming president should be the one to make the nomination. This position was totally unprecedented, as it is of course fully within the purview of the acting president to nominate Justices to the Supreme Court, just as written in the Constitution. From The Nation:
When Republicans didn’t like the fact that President Obama would get to fill Antonin Scalia’s Supreme Court seat in 2016, they simply invented a new argument—that a president in the last year of his term or during an election year couldn’t make a new appointment—to avoid giving Merrick Garland a hearing, let alone a vote. In fact, on seven different occasions since 1912, a president in the last year of his term or during an election year was able to fill a Supreme Court vacancy. “All vacancies in an election year in the last 116 years were filled,” reports Factcheck.org.
The Modern Conservative Court
The confirmation of Gorsuch to the court will immediately shift the ideological focus of the court to the right, writes Lydia Wheeler of The Hill:
Some court watchers say Gorsuch may be even more conservative than Scalia, his mentor and a fellow adherent to the originalist view of the Constitution.
His impact could be felt immediately, specificlly on the issue of religious freedom, according to David G. Savage of the LA TImes:
Neil M. Gorsuch joins the Supreme Court just in time to cast potentially significant votes in cases that pit religious liberty against gay rights, test limits on funding for church schools and challenge California’s restrictions on carrying a concealed gun in public.
Such issues arise either in appeals filed by conservative groups that have been pending before the justices for weeks or in cases to be heard later this month.
Gorsuch’s votes in those matters may give an early sign of whether the court’s conservatives — with their 5-4 majority restored by his confirmation — will pursue an activist agenda.
First up is Masterpiece Cake Shop v. Colorado Civil Rights Commission, which involves, you guessed it, gay wedding cakes. From Mother Jones:
The gay-cake case seems custom-made for Gorsuch, who was one of the lower court judges who ruled in favor of Hobby Lobby, the craft store that claimed providing health insurance to its employees that covered contraception violated its corporate religious freedom rights.
This case is the first of many pivotal issues facing the court in the coming months, including the climate change and police shootings.
Lyle Denniston of Constitution Daily writes that some type of ruling may also be coming on Trump’s Muslim ban very soon:
One of the most significant emergency matters that is likely to reach the court soon, perhaps this month, would be a request to take some preliminary action on President Trump’s executive order limiting entry into this country of foreign nationals from Mideast nations. Although the question may arise in a preliminary sense, it could be as important as whether the government can enforce key parts of the controversial presidential order.
When the eight-member court last took a significant action in a major controversy over immigration policy, it split 4-to-4 last term and thus left intact lower court rulings that had barred President Obama from putting into effect his delayed deportation order for individuals who had lived for long periods in the U.S. after having entered illegally or having stayed illegally after their arrival.
The Republican base has been waiting for this moment for the last 14 months, ever since Scalia died. It is true that he was the court’s most conservative member, but he died on Obama’s watch. Many have noted that this pick was stolen from the previous president.
Consolidating the Agenda
It is worth pointing out that this is a uniquely Republican phenomenon, one that has been increasingly effective through the years. They have become masters of hijacking the legislative process. Again from The Nation:
The “both sides do it” narrative is the worst kind of false equivalence. In fact, the GOP’s use of the nuclear option highlights in stark terms the Republican Party’s unique hostility to democracy, which has come to define the party in recent years through efforts like voter suppression, gerrymandering, and a stolen Supreme Court seat. (Not to mention Donald Trump’s attacks on the core pillars of democracy—like fair elections, a free press, and an independent judiciary.)
There has been much talk about deregulation and the deconstruction of the administrative state, two topics with which Gorsuch is very comfortable, writes Marjorie Cohn in the Huffington Post:
When Donald Trump’s chief of staff Reince Priebus addressed the Conservative Political Action Committee in February, he identified two priorities of the administration: the confirmation of Neil Gorsuch to the Supreme Court, and deregulation.
It turns out that elevating Gorsuch to the Supreme Court and achieving deregulation are inextricably linked.
Gorsuch, who has consistently sided with big business throughout his career, fits right in line with the administration’s hostile posture towards regulation.
Tipping the Scales of Justice
McConnell and the Republicans spent the last year telling us all that the court functioned just fine on a 4-4 split, carefully biding their time until after the election. A significant portion of their voting base votes exclusively on this issue, and would watch the entire system melt down to ensure a conservative majority on the court. It is this element, backed by powerful, moneyed interests, that is elated by the confirmation of Justice Gorsuch.
But for those of us not on the fringe, who care about clean water, income inequality, freedom of speech, and healthcare, these are troubling times. His seat should be occupied by a far more centrist judge, and indeed should have been selected by the previous president. This man is anything but that, but we will see what kind of justice he turns out to be.
Given his record, we all have every reason to believe that he plans to deliver on his promise, and usher in the new era of Conservative Judicial Activism.