Under Trump, US Supreme Court May No Longer Be Ultimate Arbiter of Justice

Ashok Easwaran

(Ashok Easwaran is an American journalist of Indian origin. He has reported from North America for over two decades. He can be contacted at ashok3185@yahoo.com. The views expressed are his own.)

Few changes in the US Supreme Court have provoked the widespread consternation of the American public, specially women, as the recent exit of Justice Anthony Kennedy.

After his retirement, announced in a brief and ‘gracious’ letter to President Donald Trump was made public, it came to be known that the White House had ever so gently nudged Kennedy to retire, giving Trump the opportunity to choose the second Supreme Court judge since taking office.

There is trepidation that President Donald Trump has a free hand to fulfill his campaign promise of filling the Supreme Court with ‘conservative judges’.

With the appointment of another conservative judge, the 1973 verdict in Roe vs Wade, which legalized abortion in the first trimester of pregnancy, could well be overturned. Also on the judicial chopping block could be restrictions on the rights of minorities, gays and labour unions.

With Trump’s appointment last year of Neil Gorsuch, Supreme Court conservatives on the bench outflank the liberals 5-4. Another right leaning judge could change the character of the US Supreme Court for decades to come. It is a legacy which Trump, and the Republicans, have salivated over since the 2016 election campaign.

The appointment of Gorsuch, and the coming one to replace Kennedy, are projected by the administration as necessary to preserve the legacy of the icon of judicial conservatism - the late Justice Antonin Scalia.

But Scalia’s pronouncements have frequently betrayed a jurist who was not the rabid conservative Republicans would have us believe. Indeed, many of his public pronouncements show him guilty of letting reason and rationale trump conservatism, a cardinal sin in the Trumpian lexicon.

To die hard evangelicals whose boundless faith in Trump obscures most issues, Scalia’s advice to high school students in 2010 may be prescient. “Movement is not necessarily progress,” Scalia said, “More important than your obligation to follow your conscience, or at least prior to it, is your obligation to form your conscience correctly. It is your responsibility not just to be zealous in the pursuit of your ideals, but to be sure that your ideals are the right ones. That is perhaps the hardest part of being a good human being: Good intentions are not enough. Being a good person begins with being a wise person.”

In a Trumpian era with an increasingly dysfunctional Congress, the judiciary would seem to be the last bastion of the three branches of government. But to the increasing consternation of the Left, and the stridency of the Right, this citadel seems to be crumbling.

The US Supreme Court has played an increasing role in determining - or in recent weeks, undermining - the protection for immigrants (travel ban), women (abortion rights) and the working class (labour unions).

A veteran lawmaker, California Senator Dianne Feinstein has warned that President Trump’s Supreme Court nominee, “could eviscerate women’s freedoms for generations”.

Trump has revealed in his obvious disdain for women. In an interview on Fox News, he made a veiled reference to the interviewer’s menstrual cycles. He has consistently had problems with a woman’s biological processes. In a presidential debate, he called then presidential candidate Hillary Clinton’s need for a toilet break ‘disgusting’. Earlier, he had used the same epithet for an opposing female attorney who sought a break to breast feed her three-month-old daughter.

Four hundred and seventy-two women have entered the race for the US House of Representatives this year, a record of sorts. Fifty-seven women have filed their candidacies for the US Senate. Political analysts have said that since a majority of female candidates are Democrats, it is safe to presume that many of them are fuelled by frustration, if not fury, against the current occupant of the White House.

Another remarkable feature of the contestants is the diversity - it includes more women of colour than in previous electoral years, as well as a number of immigrants.

The elections in November are likely to be the first indicator of the degree of vigour behind the revolt against Trump. Or more precisely if the anger and anguish can be converted into political capital.

In The Republic, the Greek philosopher Plato describes a conversation between Socrates and Adeimantus in which Socrates compares a democratic society to a ship. If Adeimantus was heading out to sea, Socrates queries Adeimantus, who would he have as the skipper of the ship. Any passenger at all or someone skilled in seafaring ? Adeimantus does not hesitate. “Why, the latter of course,” he says. “So why then,” responds Socrates, “do we think that any old person should be fit to judge who should be a ruler of a country?”

Voting in an election is a skill, asserts Socrates, not a random intuition. And like any skill, it needs to be taught systematically to people.

Socrates knew how easily people seeking election could exploit our desire for easy answers. “It takes very little”, Socrates warns, “for a democracy to descend to demagoguery”.

Only the boundlessly faithful can miss the parallel between Alcibiades’s Athens and Trump’s America. (IANS)