Republican tenacity, focus and luck have cemented a conservative majority on the Supreme Court
Republicans and Democrats have traded the White House over the last 50 years, with the GOP in control for 30. They’ve had a majority in the Senate for 20. But for 49 years, a conservative majority has controlled the Supreme Court.
That’s a remarkable run that speaks to Republican focus on the court, tenacity and more than a small amount of luck.
The high court majority has not held back the forces of social change as much as some conservatives have wished. It was a conservative court in 1973 that declared a nationwide right to abortion in Roe v. Wade and, by some measures, an even more conservative one in 2015 that established marriage equality for same-sex couples in Obergefell v. Hodges.
Nonetheless, Republicans have succeeded in preserving the high court as a conservative element in American public life. It’s about to become more so.
Liberal activists momentarily sighed in relief on Wednesday when the Supreme Court adjourned its term for the year.
Yes, as anticipated, they lost a major decision on public-employee unions, capping a year of defeats for most liberal causes at the nation’s highest court. But no justice announced a retirement. Perhaps, many thought, the widespread rumors that Justice Anthony M. Kennedy would step down were premature.
The relief was short-lived. Not long after the final decision was read, Kennedy rode to the White House, met for roughly half an hour with President Trump and delivered his formal resignation letter. The news, though long anticipated, overshadowed all else in Washington.
[Here’s a review of some of Kennedy’s most important decisions.]
As David Savage wrote, Kennedy’s retirement came at an ideal time for Trump: Republicans control the Senate, and the appointment of a more conservative successor will allow the GOP to focus on an issue, judges, that unites them at a time when Trump’s agenda on immigration, trade and relations with U.S. allies has divided them.
Trump has largely contracted out the selection of judicial appointments to conservative groups — notably the Federalist Society — which have spent years carefully honing and shaping lists of smart, young conservative jurists with clean histories and strong academic and establishment credentials. That approach minimizes the chance of surprises during or after the confirmation and maximizes party unity.
Two of the leading candidates, Savage wrote, are federal appeals court judges Brett Kavanaugh and Amy Coney Barrett.
Democrats have little ability to stop or even significantly to slow the nomination, as Jackie Calmes wrote. The one pitfall for Trump would be a nominee who proves too conservative for the GOP’s remaining moderates — primarily Sens. Susan Collins of Maine and Lisa Murkowski of Alaska.
Both senators favor abortion rights, and a nominee who too openly desires the reversal of Roe v. Wade could provoke them into opposition. With only 51 Republican senators, their defections could doom a nominee.
But ever since the defeat of Robert Bork’s nomination to the high court in 1987, judicial nominees have practiced the art of hiding their ideological commitments when they appear before the Senate for confirmation.
Even if Collins and Murkowski opposed a nominee, Trump might still win because the battle could put several Democratic senators in a difficult spot.
Three Democrats — Sens. Joe Manchin of West Virginia, Joe Donnelly of Indiana and Heidi Heitkamp of North Dakota — voted for Trump’s previous nominee, Justice Neil M. Gorsuch. All three are seeking reelection this year in states where Trump remains highly popular.
If they vote against his nominee, they could alienate voters at home. If they vote for the nominee, they could lose donors and Democratic activists. That’s a win-win in the eyes of Senate Majority Leader Mitch McConnell (R-Ky.).
So, barring a major miscalculation by the White House, Trump’s second appointment to the court likely will be confirmed by late September or early October.
ABORTION RESTRICTIONS AHEAD
Public opinion has shifted mightily on some issues over the last decade. Marriage equality for same-sex couples, barely considered possible just a generation ago, now has the support of the American public by about 2-1, numerous polls have shown. Even among Republicans, about half support the idea.
As a result, there’s little likelihood of Kennedy’s landmark ruling on marriage being overturned — a state would first have to try once again to limit marriages, and none has recently discussed doing that.
On abortion, however, public opinion has barely budged in the 45 years since Roe. Most Americans say they don’t want to see the ruling overturned, but some abortion restrictions get significant support. And in some states in the South and the nation’s interior, anti-abortion sentiment remains a clear majority position.
As Evan Halper wrote, as many as 17 states have laws on the books that would ban all or nearly all abortions if the high court overturned Roe and once again gave states the power to make the decision.
If a new Trump nominee joined Gorsuch and Justices Samuel Alito and Clarence Thomas in opposition to Roe, the question of how quickly the court would move and how far it would go would largely be up to Chief Justice John Roberts, who now seems likely to be the court’s swing vote.
THE ROBERTS COURT
The final days of this court’s term gave some sense of what the court might look like with Roberts as the key vote. He wrote two of the most consequential decisions in the term’s closing weeks.
On Monday, Roberts wrote the 5-4 decision upholding the third version of Trump’s travel ban on people from several mostly Muslim countries. As Savage wrote, it was Trump’s most consequential legal victory to date and signaled strong deference to the executive branch on immigration issues.
The week before, Roberts sided with the court’s four liberals in saying that police need a warrant to obtain cellphone location data. That decision, also 5-4, significantly updated privacy protections for the digital age, as Savage wrote.
It was also the rare case this year in which the liberals found themselves in a majority. For the next several years, those victories most likely will come even less often.
MORE THAN 2,000 KIDS STILL WITHOUT THEIR PARENTS
More than a week has passed since Trump showily signed an order saying that his administration would stop its policy of separating families apprehended crossing the border illegally. So far, confusion remains the order of the day.
The Department of Health and Human Services continues to hold more than 2,000 children who were taken from their parents. On Tuesday, Health and Human Services Secretary Alex Azar made clear that the administration would refuse to reunite any of the families so long as the parents insisted on pursuing their claims for asylum in the U.S.
Under existing court decisions, the government can’t force a child to remain in immigration custody for more than 20 days, Azar said. So as long as the parents are in immigration custody, he can’t return the children to them, he claimed. If a parent agreed to be deported, of course, that would be different.
The administration, so far, has rejected the alternative that prevailed for most families over the past four years — releasing people with valid asylum claims and keeping them under monitored supervision until an asylum hearing.
Hours after Azar testified in the Senate, a federal judge in San Diego ordered the administration to reunite the separated families within 30 days. As of Friday morning, the administration had yet to say whether it will comply with that order or appeal.
The San Diego case was one of about a half dozen legal challenges in courtrooms across the country related to the administration’s policy.
Meantime, parents and children must deal with a web of agencies that have custody of different family members, as Jazmine Ulloa described. So far, the families have received few answers.
In a sad irony, the State Department on Thursday released a report that decried the effect of separating children from parents.
“Removal of a child from the family should only be considered as a temporary, last resort,” said the report. It was unveiled at a ceremony headlined by Secretary of State Michael R. Pompeo and Ivanka Trump.
Politically, the administration’s crackdown on immigration appeals to Trump’s core supporters. But, as a new poll showed this week, most Americans have grown more sympathetic to immigrants over the past few years. Opposition to central elements of the administration’s immigration policies has grown.
PUTIN SUMMIT AHEAD
On Thursday, the White House and the Kremlin announced long-anticipated plans for Trump and Putin to meet in Finland next month. As Noah Bierman wrote, the announcement came as European allies increasingly fear the administration is shifting alliances.
Similar doubts about where the U.S. is headed under Trump have discomforted U.S. allies in Asia. As a result, America’s influence in the western Pacific may be on the decline, Tracy Wilkinson and Barbara Demick wrote.
And Don Lee, on temporary assignment in Beijing, looked at Trump’s claim that trade wars are easy to win. A trade war with China may be much tougher than Trump thinks, he reported.
A REPUBLICAN-ON-REPUBLICAN BRAWL
Congressional hearings only sometimes deliver real theatrics, and when they do, they almost always involve partisan differences.
That made Thursday’s hearing at the House Judiciary Committee extraordinary. Deputy Atty. Gen. Rod Rosenstein, a registered Republican, appointed by Trump, engaged in a blistering exchange with conservative Republicans, notably Rep. Jim Jordan of Ohio.
As Chris Megerian wrote, it’s all about the effort by Jordan and other conservatives to undermine the probe into Russian interference in the 2016 election that’s being conducted by special counsel Robert S. Mueller III.
THE MIDTERM OUTLOOK
Tuesday’s surprise defeat of Rep. Joe Crowley in New York, a senior member of the Democratic leadership, has increased Democratic unease about Nancy Pelosi‘s leadership team, Sarah Wire wrote.
Crowley was widely viewed in the House as a potential successor to Pelosi. Now the jockeying is quietly starting to see who else will emerge. Several California members are among those sounding out the possibilities.
Of course, a big question for Democrats remains: Are they jockeying for a potential speaker or another minority leader? A lot will depend on races in California. The last one has now been set into place as Harley Rouda, by a 125-vote margin, won the right to challenge incumbent Republican Rep. Dana Rohrabacher in Orange County. Rouda has ground to make up, Christine Mai-Duc reported.
And former President Obama weighed in on the midterms Thursday, at a fundraiser in Los Angeles. Christine Mai-Duc was there for the scene.
“I would caution us from extrapolating too much from a bunch of special elections and starting to think that, ‘OK, this will take care of itself.’ Because it won’t,” Obama told them. “Fear is powerful.”
BIG WEEK IN SACRAMENTO
Lawmakers scrambled Thursday ahead of the deadline for measures qualifying for the November statewide ballot.
The team captured the sometimes tense maneuvering here.
And here is our roundup of what happened in Sacramento over the last week.
Get up to speed on the 12 propositions California voters will consider in November.
That wraps up this week. My colleagues Christina Bellantoni and John Myers will be taking a break until July 9. I’ll be back Friday for the next edition of Essential Politics. Until then, keep track of all the developments in national politics and the Trump administration with our Essential Washington blog, at our Politics page and on Twitter @latimespolitics.
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