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The Supreme Court Could Cost Trump the Election

Recent decisions have demoralized his conservative base. It really couldn't have come at a worse time.
Neil Gorsuch Is Sworn In As Associate Justice To Supreme Court

“John Roberts is David Souter,” Newsweek’s conservative opinion editor, Josh Hammer, said Thursday. 

The nation’s highest court — led by its putatively conservative chief, Roberts — has just stiff-armed the Trump administration’s attempt to demolish the Deferred Action for Childhood Arrivals (DACA) program, a signature Obama-era policy. Arguing that history repeats itself, Hammer’s reference was to President George H.W. Bush’s first appointee to the Supreme Court; the Rockefeller Republican’s lurch to the left bedeviled “values voters” for the better part of two decades. In smacking down the Department of Homeland Security, Roberts said: “The dispute before the court is not whether DHS may rescind DACA. … All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.” Roberts’ archconservative colleague — Justice Clarence Thomas — called the majority’s rationale a “mystifying” cop-out. And Justice Brett Kavanaugh said “the only practical consequence… appears to be some delay.”

But for President Trump, it was yet another morning of bitter recriminations — in the face of mounting legal defeats: “Do you get the impression that the Supreme Court doesn’t like me?” Earlier this week, in a case Trump appeared to care less about, the Court’s majority — joined by one of Trump’s appointees, Neil Gorsuch — extended massive Civil Rights protections to gay and transgendered people. It’s worth remembering that the president ran first and foremost on immigration. Though popular enough with the demographic, Trump felt the need to shore up the Religious Right with the selection of his deputy, Michael R. Pence. Not a religious man, on the week’s earlier decision the president said: “They’ve ruled and we live with their decision. That’s what it’s all about. We live with the decision of the Supreme Court. Very powerful. A very powerful decision actually. But they have so ruled.”

But however you slice it, two legal defeats for the right wing in one week is bitter medicine for the head of the Republican Party. It couldn’t have come at a worse time. Trump is already juggling a pandemic, a new economic depression, and a flawed response to social unrest that’s been both lacerated in the liberal press and derided by hardliners in his own column. A person close to the president told me he looks “weak” and “that’s the one thing voters won’t forgive.” Though Roberts was a George W. Bush appointee — and it’s worth noting that Gorsuch did not join the DACA majority — Trump, nonetheless, now risks personally owning what is increasingly viewed by doctrinaire conservatives as a generation of failed political strategy as it relates to the judicial branch.

“I will be releasing a new list of Conservative Supreme Court Justice nominees, which may include some, or many of those already on the list, by September 1, 2020,” Trump said Thursday. He continued (in perhaps the first public sign that he knows he trails in this race): “If given the opportunity, I will only choose from this list, as in the past, a Conservative Supreme Court Justice… Based on decisions being rendered now, this list is more important than ever before (Second Amendment, Right to Life, Religous [sic] Liberty, etc.) – VOTE 2020!” 

But it’s now an open question if many loyal Republicans, after decades of presidential dominance — twenty-four years of control of the White House since 1981 — will conclude that it just doesn’t matter who gets appointed to the court, if the culture is, from their point of view, lost. It’s a perspective many would argue is overheated but from a political standpoint, pessimism about the public square — perhaps best exemplified by The American Conservative’s Rod Dreher and “the Benedict Option” — is commanding an increasing following. At the very least, that impression could have real reverberations in the coming election, given what’s on offer. The Republican Party boasts the White House, the U.S. Senate, a majority of Supreme Court seats and governor’s mansions. And yet, over the last several months, the country has undergone the most sweeping social change in at least a half-century.

Another figure close to the president draws another parallel to George H.W. Bush, the last incumbent in the White House to lose re-election. The forty-second president invoked the Insurrection Act — something Donald Trump declined to do — to quell the 1992 riots in Los Angeles. But the damage was done. The images of a major American city ablaze were seared into national memory. Voters opted for something different come November — even flirting with the most credible third party challenge in nearly a hundred years — but the prize was eventually won by the Democratic Party. By any measure, the urban wreckage in 2020 — in tandem with months of national lockdown — is more significant than in 1992, and national disillusionment as severe as 1968, that year of assassination and metropolitan meltdown. Some conservatives console themselves that history will repeat — with the Left punished as it was in 1968. That interpretation elides that the Republicans, not the Democrats, are in power. If anything, the logic works in reverse.



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