Last week’s two significant Supreme Court decisions – loosening some restrictions on American’s gun owners and restricting abortions for the nation’s women – represent the ultimate impact of Donald Trump’s narrow 2016 election victory over Hillary Clinton.
They also represent the success of Senate Republican Leader Mitch McConnell’s cynical manipulation of Senate confirmation procedures. He kept a Democratic president from installing a justice in the last year of his presidency but enabled a Republican to install one as the nation’s voters were poised to oust him from office.
Ironically, neither Trump, known primarily before his election as a bombastic developer and reality television host, nor McConnell, a dour master of the Senate’s inside game, had ever identified strongly with the GOP’s most fervent abortion rights opponents.
Trump, who said in a 1999 interview on NBC’s Meet the Press, “I’m very pro-choice,” switched positions when he began to eye the Republican presidential nomination. “I’m pro-life (and) against gun control,” he told the Conservative Political Action Conference in 2011.
While wooing religious conservatives cool to his 2016 candidacy, he issued a list of conservative jurists he would consider for the Supreme Court, predicting they would overturn the 1973 Roe v. Wade decision legalizing abortions.
Similarly, he took increasingly fervent positions opposing any gun control measures, claiming they threatened the Second Amendment. His stance gained him strong political and financial support from the National Rifle Association and its allies.
The result is that, at a time when pervasive gun violence has prompted widespread support for increased limits on firearms ownership, a court with Trump’s three nominees further extended gun rights that it decided in 2008 were protected by the Second Amendment.
More dramatically, it repealed the constitutional right to an abortion that it established in 1973, though polls show most Americans favor its retention, some with limits.
These two decisions show a court more at odds with the public’s views than at any time in decades. They raise the question of whether public opposition to these decisions – especially the one curbing abortions -- will help the Democrats in the 2022 midterm elections and the 2024 presidential race.
Critics face one overriding reality: It may take a long time before they can displace the court’s current six-justice conservative majority. With liberal Justice Stephen Breyer’s impending retirement, the court’s oldest members, Republican nominees Clarence Thomas and Samuel Alito, are only in their early 70s.
Earlier this year, President Joe Biden gained Senate approval of Judge Ketanji Brown Jackson to succeed fellow liberal Breyer, the court’s oldest member.
But Republican recapture of the Senate in November’s election could enable McConnell to block Biden from filing any unexpected vacancies in the second two years of his term, like he blocked former President Barack Obama’s choice of Merrick Garland, now the attorney general, in 2016.
After that, the fate of the court – and many crucial issues facing the country -- would depend on who wins the presidency and the Senate in 2024 – and beyond.
In both decisions, Trump’s three nominees formed the majority, along with fellow conservative nominees of prior GOP presidents: Clarence Thomas (President George Bush) and John Roberts and Samuel Alito (President George W. Bush). Questionable circumstances surrounded the nominations or confirmations of all three justices who joind the court under Trump.
Justice Neil Gorsuch filled the vacancy caused by McConnell’s unprecedented decision to prevent Senate consideration of Obama’s choice of Garland to succeed the late Justice Antonin Scalia.
By contrast, in the 1988 presidential election year, a Democratic Senate confirmed President Ronald Reagan’s nomination of Justice Anthony Kennedy to succeed Justice Lewis Powell.
To enable his confirmation, 54-45, McConnell and the GOP majority changed Senate rules to require only a majority vote, as Democrats had done earlier for district and appellate judicial nominees. It enabled the GOP majority to approve justices without Democratic votes.
A year later, the White House persuaded Kennedy to retire so Trump could name Brett Kavanaugh, a former Kennedy clerk and onetime White House staffer whom President George W. Bush named as an appeals judge. Kavanaugh was confirmed after a contentious hearing, 50-48.
During those proceedings, Kavanaugh, like Gorsuch, told Maine Republican Susan Collins and West Virginia Democrat Joe Manchin, two crucial swing votes, that he considered Roe v. Wade settled law. They cast the decisive votes for Kavanaugh’s confirmation, but he voted to overturn Roe v. Wade.
Last week’s decision might have been less sweeping had the Senate not confirmed Trump nominee Amy Coney Barrett after liberal Justice Ruth Bader Ginsburg died in September 2020.
Ignoring his own 2016 precedent, McConnell sped her nomination through, 52-48, just one week before Trump lost re-election. If Biden had inherited the vacancy, he doubtless would have named an abortion rights supporter.
With Garland -- or without Barrett -- the court probably would have accepted Chief Justice Roberts’ proposal to uphold the Mississippi law limiting legal abortions to 15 weeks instead of the current 21, rather than totally repeal Roe v. Wade.
An entirely different scenario might have unfolded had Ginsburg yielded to entreaties from some Democrats to retire while Obama could name a like-minded successor. As a result, the liberal icon shares some blame for a decision that she would have abhorred.
The potential impact of her decision may have influenced the 83-year-old Breyer’s decision to step aside for Biden to name his successor.
By then, however, the Trump majority was in place.
