By Earl Ofari Hutchinson
Five and four are far more than simple math numbers. They have become the norm for the U.S. Supreme Court vote on any profound game-changing court case.
That 5-4 vote has spelled deep peril for millions of Americans. President Donald Trump’s Supreme Court pick, Brett Kavanaugh, will virtually encode that number in present and future Supreme Court decisions for years to come.
Trump and Republicans bank on that. For three decades, Republican political and judicial activist groups have ruthlessly pulled out all stops to enshrine a 5-4 conservative majority on the high court. They bankrolled court watchdog and lobbying groups to the tune of millions of dollars.
They railed against liberal activist judges. They compiled and vetted dozens of rigidly conservative ideologue judges for the appellate courts and the Supreme Court. They made sure Republican senators and Republican presidents demanded a hard-nosed ideological litmus test for prospective judges on union rights, voting rights, corporations, campaign financing, federal powers, same sex marriage, and of course the conservative’s number one pet peeve, abortion.
They topped their relentless drive to control the court with their greatest coup of all. They absolutely refused to hold a single hearing, let alone a vote, on then President Barack Obama’s Supreme Court nominee Merrick Garland. Then when they got the ideological compatible Supreme Court nominee they hungered for in Neil Gorsuch, they rammed home the “nuclear option” that cut off all debate and then got their man in on a simple majority vote.
Even before Gorsuch and Kavanaugh, Justice Clarence Thomas and the late Antonin Scalia virtually turned 5-4 into a fine art. They reflexively voted against any and every Obama administration position, initiative, or piece of legislation that wound up before the court. It was a judicial war against him that was almost unprecedented.
The five ruled multiple times that Obama had allegedly badly abused his constitutional authority in decisions, appointments and court appeals. Their rulings had nothing to do with executive abuse since many of the cases were routine appeals. They were open, no-holds barred, ideological wars against Obama.
The five ruled against him in most of cases that had his administration’s fingerprint on it. Invariably the vote against him was 5-4. The assault had little to do with the law and everything to do with politics and ideology. Their decisions against him were blatant partisan political pandering.
Thomas and the other four justices were appointed by Republican presidents. The other four justices that almost always backed the Obama administration in their votes on court cases were appointed by him or other Democratic presidents.
The tip-off that the conservative five would vote their ideology rather than the law came from George W. Bush. On the presidential campaign trail in 2000, Bush was asked if elected what kind of judge he would look for and nominate. He didn’t hesitate.
He pledged to appoint “strict constructionists” to the court and specifically named Thomas, Scalia and William Rehnquist as the judges that perfectly fit that description. Trump may have badmouthed Bush and the GOP establishment during his presidential campaign, but he quickly latched onto their template for packing the court with ultra-conservatives to cement their majority.
He stumbled over himself to practically coronate Scalia as the second coming of Moses, the lawgiver. He repeatedly vowed that his nominees would be Scalia clones.
Gorsuch was the first. He was the much vaunted and cherished fifth and deciding vote on Trump’s Muslim travel ban, ripping apart public employee unions, upholding the right of faith-based crisis pregnancy centers to counsel against abortion, to torpedo a key labor protective provision of the National Labor Relations Act, to tighten the screws on prisoner lawsuits, sanctioned discrimination against gays, and to upheld Ohio’s voter purge law.
The rulings have far-reaching and damaging public policy consequences for gays, minorities, women and labor. The beauty of it for conservatives is that they were all decided by the 5-4 majority that they worked so painstakingly hard to put in place on the court.
The problem with retiring Justice Anthony Kennedy was that he was not and would never be the dependable fifth vote.
However, Trump’s replacement for Kennedy changes the Supreme Court completely. This will be the encased fifth vote that guarantees that anything that hits the court that evenly remotely touches on voting rights, affirmative action, prisoner rights, corporate and property rights, and union and environmental protections can almost be mailed in; the majority decision will be that predictable.
The horror of this is that the four liberal and moderate judges can do nothing more than voice impassioned dissents that will have absolutely no force of law behind them.
Trump and the GOP know this, and the playbook they used to sabotage Garland and fast track Gorsuch through will be used again. Get used to 5-4. It will be the Supreme Court’s standard number from here out.
Earl Ofari Hutchinson is an author and political analyst. He is the author of the forthcoming “Why Black Lives Do Matter” (Middle Passage Press). He is a weekly co-host of the Al Sharpton Show on Radio One and the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.