And May God Bless This Republican Court!

                 With the Supreme Court’s term almost over, Republicans and legal conservatives were less than happy with the 6-3 conservative majority created thanks to the Court packing as practiced by President Trump and the Senate’s Republican leader, Kentucky’s Mitch McConnell.

                The Court, with two of Trump’s appointees in the 7-2 majority, had rejected the Republicans’ last-gasp effort to strike down Obamacare by judicial fiat rather than in Congress. And the justices had stalled the conservatives’ latest efforts to overturn Roe v. Wade or expand Second Amendment gun rights by postponing those cases until the new term begins in October.

                Against those disappointments, however, the Robert Court’s six Republicans gave Republicans and free-spending conservative groups two generous parting gifts on the final decision day of the term by gutting the Voting Rights Act and by laying the groundwork for possibly striking down or limiting campaign finance disclosure rules. Both decisions came on 6-3 votes that pitted the six Republicans against the three Democratic appointees.

In the first of those decisions, Brnovich v. Democratic National Committee [July 1], the Court upheld laws passed by Arizona Republicans to cut the legs off Democratic Party tactics used to get out the vote in minority communities. Alito’s opinion manufactured new, restrictive criteria for striking down election laws with disparate impact on racial minorities. The three Democratic-appointed justices argued In dissent that the so-called textualists were rewriting the law Congress had passed, knowingly and deliberately, to prohibit voting practices with disparate racial impact even if proof of racial motivation was lacking.

In the second decision, Americans for Prosperity Foundation v. Bonta, the Court struck down, at the behest of a Republican outfit, a California regulation requiring non-profit organizations to disclose major donors, ostensibly to aid in preventing fraudulent fund-raising. In his opinion for the Court, Roberts rejected, by elevating freedom of association, the state’s rationale by noting the lack of any anti-fraud enforcements under the challenged regulation.

                From the opposite perspective, however, the conservatives who upheld Arizona’s election law failed to note that the Republican-majority legislature broadened the law against third-party “ballot harvesting” even though the state had no history of prosecutions for voter fraud under the previous, less restrictive law.

                These decisions illustrate the way that a series of five Republican presidents since the 1960s have used Supreme Court appointees to transform the Court into an instrument of Republican Party politic rather than a guardian of “equal justice under law.”

                At almost every opportunity, presidents from Nixon through Reagan, Bush father, Bush son, and Trump nominated conservative ideologues for the Court rather than lawyers or judges well respected for moderate and judicious views.  As a result, five of the Court’s Republican justices won confirmation on party-line votes with fewer than 60 votes in the 100-vote Senate, once the threshold for bringing a disputed nomination to a floor vote.

                With four exceptions, the Republican justices have marched in step with the GOP program to limit affirmative action and civil rights enforcement, limit campaign finance regulations, and limit civil litigation remedies for consumers and workers. Three of the exceptions – Stevens, O’Connor, and Kennedy – owed their appointments to moments of bipartisanship: Ford’s post-Watergate confidence-building selection of the respected Stevens; Reagan’s symbolic selection of O’Connor as the Court’s first female justice; and Reagan’s nomination of Kennedy after the Senate had rejected the Gipper’s first choice, the arch-conservative Robert Bork.

                The fourth exception, Souter, resulted not from bipartisanship but from miscalculation. Bush41 accepted the assurance from his adviser, Souter’s one-time sponsor John Sununu, that Souter would be a reliable conservative on the bench. Instead, as could have been predicted, the moderate New Hampshire Republican, educated at Harvard Law School before the birth of the Federalist Society, proved to be more in the mold of Earl Warren than Rehnquist or Scalia.

                It remains to be seen whether any of Trump’s three appointees – Gorsuch, Kavanaugh, and Barrett – prove to be miscalculations as well, despite somewhat erratic voting patterns so far early in tenures likely to extend for another two decades, long after Trump and Trumpism are both gone.

                Gorsuch and Barrett both owe their seats to the blatant hypocrisy that McConnell and Senate Republicans practiced in regard to late-in-term presidential appointments to the Court. McConnell prevented President Obama, elected twice with a majority of the popular vote and with nearly a year remaining in his term, from appointing Merrick Garland, a well respected judge of moderate reputation, to fill the seat left vacancy by Scalia’s death.

                Garland’s confirmation, if McConnell had permitted, would have given Democratic appointees a majority on the Court for the first time since 1960. McConnell did not allow that to happen, of course, because in his mind it is not “this honorable Court” that needs divine blessing but “this Republican Court.”

                Four years later, Trump’s nomination of Barrett, with only months remaining in his term and facing likely defeat at the polls, encountered no obstacles in McConnell’s Senate but was instead fast-tracked. The political hypocrisy was so blatant that it could be seen with the naked eye from the top of the Washington monument, but only one Republican—Alaska’s Lisa Murkowski—refused to go along.

                The occasional odd lineups during the 2020 term encouraged some Court watchers to see evidence of reduced partisanship at One First Street, but hard-headed Court watchers should not be misled. The most common lineup in divided decisions during the 2020 term pitted the six Republicans against the three Democrats. And end-of-term statistics showed the six Republicans more often in the majority than any of the three Democrats. In short, it is a Republican Court, not “this honorable Court,” that the marshal should pray for when the Court opens on First Monday, three months from now.