Our constitutional system of “checks and balances” only works if those in a position to operate the levers of checking and balancing do their job. It is clear that a Republican Congress and Republican appointees to the Supreme Court have no taste for such work. For the moment, President Trump is mostly unchecked and unbalanced.
It is equally clear—on Trump’s travel ban but also on issues related to voting rights, labor rights and gerrymandering—that the Republican Five on the nation’s highest court have operated as agents of their party’s interests.
And now things stand to get even worse because of Justice Anthony Kennedy’s retirement. He was, at least on some occasions, a moderating force. His replacement by another conservative hardliner in the mold of Justice Neil Gorsuch would give right-wing interpretations of the law free rein.
This Court’s direction was troubling enough with Kennedy there. On the travel ban, for example, the majority that included Kennedy discounted the obvious (practically every word Trump has said about Muslims) to make a decision based on a rather absolutist view of presidential power, about which they were skeptical when Barack Obama was president.
When it comes to access to the ballot, they are pushing the nation back to the jurisprudence of the pre-civil rights era. The majority’s shameless ratification of a racial gerrymander by Texas’s Republican Legislature, wrote Justice Sonia Sotomayor in dissent, demonstrated its refusal to enforce the “right of equal opportunity.”
And on Wednesday, in what might be seen as a companion to the Citizens United decision that enhanced the influence of corporations on our political life, the majority voted to undercut organized labor’s ability to fight back. In Janus v. American Federation of State, County and Municipal Employees, it ended the practice of public employee unions automatically collecting fees from non-union members on whose behalf they negotiate contracts, tossing aside forty-one years of settled law and crippling the broader labor movement.
As Justice Elena Kagan wrote in dissent: “There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over forty years.” The majority overruled precedent, she wrote, for “no exceptional or special reason” but simply “because it wanted to.” That’s judicial activism, and it’s bringing back the Gilded Age.