How Do You Solve A Problem Like Neil Gorsuch?
To repeat what I said yesterday, Donald Trump is a horrible person and a destructive President with autocratic ambitions but I think history will show that America’s democratic project really ended when Mitch McConnell refused to seat Merrick Garland on the Supreme Court.
Today, Neil Gorsuch again provided the necessary fifth vote to uphold the Trump administration’s third attempt to craft a Muslim travel ban that would do just enough to satisfy the Supreme Court’s conservative majority. The effect of this ruling is that Trump can now ban entire nationalities of people as opposed to just those of a certain religion. Apparently, there is nothing that can now stop Trump from imposing a similar ban on every Central American country or even Canada for that matter as long as he bases it on some mythical national security concern.
The pathetic nature of this ruling was virtually admitted by Justice Kennedy in his concurring opinion when he wrote, “There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects”. In other words, Kennedy is saying that Trump is allowed to implement the ban but then almost pleads with him not to abuse that power. How does he think that will work.
Once again, Sotomayor punches enormous holes in the fallacious arguments of the conservative majority. As she points out in her dissent, the Court put enormous weight on the mild expressions of religious hostility by members of the Colorado Civil Rights Commission in the case of the bake shop refusing to make a cake for a gay couple but Trump’s for more blatant and egregious hostility to Muslims was something the Court desperately ignored in this case.
The problem that our country now faces is that the anti-democratic forces have so skewed our democracy that the only way to repair it is actually through anti-democratic measures, which, assuming we can even survive the age of Trump, runs the risk of creating a death spiral of retaliation as each party attains power.
For Democrats, there is really only one option remaining to reclaim the seat stolen by McConnell in the form of Gorsuch. Impeachment is a non-starter because it will require a two-thirds vote in the Senate and, because of the anti-democratic nature of that body, that is virtually impossible for Democrats to achieve. The only remaining option it to simply pack the Court the next time the Democrats control the White House and the Senate and create the liberal majority we should have had in 2016. Of course, the professional pundit class will be up in arms over this breach of etiquette. But it is an option Democrats really needs to seriously consider if our democracy is to be saved from gerrymandering, voter suppression, and legalized racism and intolerance.
