Trump’s most influential legacy (opinion)
Upending the precedent he manufactured in 2016, that a SCOTUS seat not be filled in an election year, Majority Leader Mitch McConnell is likely to deliver something that Republicans have been clamoring for — a Supreme Court with an unbeatable conservative majority.
Some Democrats — and Republicans — make the mistake of focusing on President Donald Trump primarily as a disrupter, a commander in chief whose main claim to fame has been breaking with convention, destroying norms and institutions and causing endless chaos. The ongoing vitriol that flows from his Twitter feed seems to capture his essence better than anything else.
But as we reach the end of his first, and possibly only, term, it is important to also recognize the ways in which President Trump has transformed the political landscape and not just broken it. These four years will have enormous long-term effects, regardless of whether Trump is reelected.
When it comes to immigration, for instance, the President has shifted the debate sharply to the right, making it much more difficult to achieve in the near future a grand bargain that includes a path to citizenship for the more than 11 million undocumented persons in our borders.
The President has focused public policy on limiting immigration, imposing family separation policies, knee-capping the Deferred Action for Childhood Arrivals program and fearmongering by shifting focus to the supposed dangers that immigrants pose to our country rather than their overwhelming virtues.
Nowhere has the President’s impact been as clear as with the courts. Over the last four years, the administration has worked closely with Senate Republicans to nominate and confirm federal appointees, many of who come recommended from the networks of the Federalist Society, an organization that seeks to produce more conservative federal courts. By September, Trump boasted of 217 judicial appointments.
With Barrett, the President will complete a project that started in 1986 when President Reagan elevated William Rehnquist to the role of chief justice of the Supreme Court and Antonin Scalia to replace him as a justice.
In doing so, Reagan made clear his intention to accelerate a rightward shift in the highest court of the land by ridding the body of the legacy of Earl Warren, the chief justice from 1953 to 1969, who led his colleagues through a series of watershed decisions on civil rights, civil liberties and criminal justice that marked a triumph for legal liberalism.
Now, with the presidential election underway, Republicans will have successfully built a 6-3 conservative majority on the Supreme Court. For this court, 6-3 is much greater than 5-4. The swing of one conservative justice can no longer force a compromise. Barring any dramatic revelations that stop a confirmation that seems inevitable, the court will be poised to issue rulings that would fulfill central goals for the conservative movement.
With several issue areas — reproductive rights, health care, economic regulation, gun control, gerrymandering, voting and civil rights, and more — the 6-3 bloc has the potential to be extraordinarily effective. After all, Warren only enjoyed a 5-4 majority during his court’s extremely consequential run in the 1960s.
For instance, after Barrett’s confirmation, Roe v. Wade would almost certainly be in much greater jeopardy, if Barrett’s past signing of anti-abortion statements and other advocacy for limiting abortion. Eliminating or undercutting the 1973 decision that established a constitutional right to abortion has been a prime target for conservatives since the 1970s.
During the last term, the Supreme Court struck down a Louisiana law that would have made it difficult for many abortion providers to remain open. The court made this ruling only because Chief Justice Roberts decided to join the liberal majority. If Barrett is confirmed, this kind of switch would be less relevant.
Additionally, the Koch Brothers and other conservative business leaders, The New York Times reported, have been gunning for the court to reconsider the precedent from the 1984 case, Chevron USA Inc. v Natural Resources Defense Council. This decision established a precedent that courts should defer to an administrative agency’s interpretation of legislation when the law is ambiguous.
This was important because it strengthened the ability of an agency like the Environmental Protection Agency to enforce controversial measures.
And these issues are just the tip of the iceberg.
With Barrett on the Supreme Court, whatever happens in November, the conservative court will be a major legacy of the Trump presidency. It will constitute a huge blow to Democrats, who have lost this political battle.
With Justice Stephen Breyer having reached the age of 82, a second term for President Trump could result in a 7-2 majority before 2025. Writing long before the late Justice Ruth Bader Ginsburg passed away, my Princeton colleague Paul Starr observed that “Not since Richard Nixon has a president named four new Supreme Court justices, and not since Franklin D. Roosevelt has one had the opportunity to alter the Court’s ideological balance so decisively.”
The anger, bitterness and divisiveness that President Trump has produced consume our attention — and well they should. But we must not forget that since January 2017, this administration has also reshaped our policies and institutions. Four more years will leave us even deeper down this rightward path.
