Today Supreme Court Justice Anthony Kennedy, a conservative whose occasional swing vote has sort of moderated the Roberts Court. announced his retirement, to take effect next month. His announcement is timed to ensure a conservative replacement can be confirmed before Democrats have a chance to retake the Senate.
Republicans will rush to confirm the most extreme nominee Trump can find. Probably someone who’s a legal “analyst” on Fox News. John Yoo (the Bush-era author of the paper that legally justified torture) might like the gig. Maybe one of the very fine people who rallied in Charlottesville has a law degree.
For the foreseeable future the US Supreme Court will be a solid 5-4 majority for the most reactionary rulings imaginable. Of the four reactionary justices who will be joined by Trump’s new nominee – Roberts, Alito, Thomas, and Gorsuch – Gorsuch is 51, Thomas is 70, and Alito and Roberts are in their early 60s. None will be replaced any time soon.
The only hope now for saving our democracy – given how much damage to it Trump and his lockstep Republicans have already inflicted in only 18 months – lies with retaking one or both houses of Congress. To do so in 2018, they already will need to overcome legalized gerrymandering, voter suppression, unthinkable amounts of corporate and foreign money, and online meddling from Russia and, by now, likely China, North Korea, and the Middle East as well.
By 2020, Trump can cancel elections under one or another pretext; Fox News will applaud (of course); the SCOTUS will uphold it as representing a clear and present danger to the Dear Leader and his designated replacement, Ivanka; and Congressional Republicans, along with favored donors for what elections remain, will become unimaginably wealthy oligarchs. If Democrats or other political opponents are too critical (think of the fawning adulation Trump requires at his Cabinet meetings), they’ll be jailed or killed.
Lest you think this is absurd hyperbole, that was pretty much exactly Putin’s formula for consolidating power in the fledgling, Yeltsin-era democracy of Russia. We don’t have Russia’s political history or norms, but Trump doesn’t need them. He’s got Putin to tell him what to do next.
I said at the time that the Senate Republican refusal, for a solid year, to even consider an Obama SCOTUS nominee in 2016 – and the Democrats under Obama not making that unprecedented tactic a fight to the death, and then not making the Gorsuch nomination a bigger deal afterwards – fucked us over for a generation. But even I didn’t imagine that a decades-long reactionary SCOTUS majority could be an instrument in the demise of the US Constitution as we know it. There is nothing magical about America’s political culture that innoculates us from the sort of authoritarian kleptocracy that has run much of Latin America, Africa, and Asia in my lifetime.
This year’s midterms matter more than ever. Forget your tired cliches of both parties being the same, Democrats being corporate sellouts or war criminals (both true), or “lesser of two evils is still evil” rhetoric (also true). Time’s up. Hillary Clinton was awful, and Chuck Schumer still is. But as imperfect as they can be, no Democrat is looking to start the Fourth Reich. Democrats are, in very practical and immediate terms (like letting the rule of law have a crack at him), the only ones who can stop Trump politically.
Otherwise, start planning to make this country ungovernable – and soon, before the police state really does take hold and even that becomes impossible. There’s two things we know from those dictatorships in Latin America, Africa, and Asia: Even without the modern technology available to Trump, they’re really hard to get rid of; and doing so usually only comes after the loss of uncountable lives.
Kennedy’s retirement, and the power Trump will gain by naming an obedient replacement, is a stark reminder that time for avoiding that fate is running out.