It is certain that there will be a battle royale in the coming months between Republicans and Democrats in the U.S. Senate over the confirmation of President Trump’s choice of a successor to retiring Justice Anthony Kennedy. If anyone harbored any doubts as to the importance of each and every person who sits on the US Supreme Court, there was an object lesson in each of at least three of the 5-4 decisions the high court issued in the closing days of its term last week.
In perhaps the most celebrated case, the Court upheld, by the narrowest majority, President Trump’s executive order limiting travel from certain Muslim-majority countries. The key parts of the decision stated that a president has vast powers over immigration based upon a virtually absolute Congressional delegation of authority and that courts should not look beyond the text of a presidential exercise of this power to find a constitutional violation as long as the exercise was neutral on its face – regardless of whatever a president might say or intimate publicly.
To have ruled otherwise would have been to invite second-guessing by the courts to any and all presidential actions. In this case, national security was involved. But the invitation would necessarily have been broad, setting the stage for constant resort to courts rather than the electoral process.
In a second case, the Supreme Court, again by the narrowest of margins, said state governments could not force public employees who don’t join unions to pay fees that fund collective bargaining benefiting union members and non-members alike. In addition to objecting to effectively being hijacked into membership, some employees balked at being coerced into contributing to causes they didn’t support (public sector unions are primary backers of local Democratic party candidates). The Court said the current practice violates the free speech rights of non-union members.
In the third, and somewhat similar case, the Court, by a 5-4 vote, ruled that if religiously-oriented “crisis pregnancy centers” seek to persuade women to choose parenting or adoption (rather than abortion), a state government cannot force them to provide women who come to them with information about how to end their pregnancies.
In all three cases, the 5-4 majority consisted of conservative members of the Court and the minority its liberal members. A switch of even one would have changed the outcome and, we might add – at the risk of hyperbole – the kind of country we live in. If the coming confirmation battle results in the strengthening of the conservative majority, the effects will be felt for a generation.