Experts Predict Public Pain From New GOP High Court

The resignation of U.S. Supreme Court Justice Anthony Kennedy after a series of controversial pro-conservative court opinions last week prompted an explosion of commentary about whether the court is moving in sinister fashion toward radical, activist positions causing public harms unprecedented in recent American history.

Commentators focused heavily on the likely impact of the court’s recent holdings, several of which were by 5-4 all-Republican majorities overcoming all-Democratic minorities in ways that underscored how the court functions at times as a brute-force political operation.

Others worried that the circumstances of Kennedy’s unexpected departure and President Trump’s prompt timetable for installing a successor portend a massive concentration of government and private power in ways that have never existed in the United States previously.

The nine Supreme Court justices, with Chief Justice John Roberts at center, are shown in a 2017 portrait. Each of the nine attended either Yale or Harvard Law School, although Justice Ruth Ginsberg (at left) transferred before graduation to Columbia Law School.

As a general matter beyond the Supreme Court:

American courts, even when staffed by previous generations of conservatives, have always functioned during times when government power was diffused among federal branches and state/local governments.

But a novel and for many in the public a frightening situation now stems from the current concentration of power in an autocratic executive like Trump who uses “national security” as a mantra to assert power with scant pushback.

Targets for Trump and the authoritarians that he is appointing to the courts include voting rights, worker protections, immigrants and the economic safety net of Social Security and Medicare.

This column explores these developments by drawing on recent commentaries excerpted with hotlinks below in an extensive appendix. These resources include highlights from two annual seminars that I attended on June 28 that convened leading experts to summarize highlights of the court’s annual term, which extends from the first week of October to the last week of June. 

The Yale Law School (YLS) Association of Washington, DC sponsored one conferences for alumni and students. The other annual conference was organized by the American Constitution Society (ACS), a progressive group whose conservative counterpart the Federalist Society plays a leading role in recommending judges and policy changes to Trump and other Republicans. I am a longtime member of the two societies and also hold law degrees from both YLS and the University of Chicago School of Law.

Following this introduction, we’ll summarize the signficance of Kennedy’s resignation and preview the difficult odds that Trump’s opponents face in preserving certain major rights and safeguards, such as the Constitutional checks-and-balances designed limits excesses by the White House especially.

Next here comes a listing of a sampling of the most recent decisions and their importance. Our attention to these topics will continue, hopefully with your reader inputs.