“We’re not giving lifetime appointments to this President, on the way out the door, to change the Supreme Court, for the next 25 or 30 years.”
That was Senate Majority Leader Mitch McConnell in 2016, defending his controversial decision to block President Obama’s appointee to the Supreme Court, Merrick Garland.
The veteran Republican lawmaker enraged Democrats by refusing to hold a Senate confirmation hearing on Garland’s appropriateness for the position. Under the US Constitution, the Senate Judiciary Committee conducts hearings examining the background of the nominee and questioning him/ her about their views on a variety of cases and their judicial philosophy.
Yet when faced with a vacancy on the court after the recent death of liberal Justice Ruth Bader Ginsburg, McConnell vowed to replace her in a Senate vote, before the Nov. 3 election. Like in 2016, a Supreme Court judge had died just before the President’s four-year term had ended (actually six weeks prior this year, vs 8 months in 2016).
The U-turn is down to the fact that in 2016, McConnell was trying to block a Democrat nominee to the court, whereas in 2020 he sees an opportunity for the Senate to confirm a conservative judge chosen by Trump, thereby moving the court substantially to the right, with six conservative judges to three moderates, in the 9-member Supreme Court.
Why is this important to Americans? And why should we, as junior resource investors care?
Because Trump’s power grab on the court is unprecedented. Never before in the history of US politics has a president done so much, in a first term, to influence the courts.
In the United States the Supreme Court plays an important role in ruling on legislation sent to it by a deadlocked Congress. In the 2000 election, for example, the court ended a Florida recount and made George W. Bush President. Now, with partisanship in Washington at historical highs, parties look to the court to resolve political disputes.
Among the highest-profile is the Affordable Care Act. A challenge to the law known as Obamacare is scheduled for Nov. 10. A decision by the highest court in the land is bound to affect the healthcare of millions of Americans, including pre-existing conditions. Other issues likely to be brought to the court, include voting rights, the future of criminal justice, workplace benefits, the rights of immigrants, tax rules, and most explosively, reproductive rights.
Recent polling suggests that a majority of Americans would preserve the landmark Roe vs Wade Supreme Court decision protecting a pregnant woman’s liberty to have an abortion, but 28% would overturn the ruling.
Social unrest manifested in protests aimed at redressing racial inequality have dragged the dollar down and hurt the States’ reputation as a stable safeguard of civil liberties. Gold and silver prices have benefited tremendously from the chaos, along with all the economic fallout from covid-19 including shockingly high unemployment, record stimulus spending underpinning fears of inflation, and negative real interest rates for the next three years at least.
Now we have five, and possibly six, if McConnell succeeds in replacing Bader Ginsburg before the election, Supreme Court judges out of nine holding conservative beliefs – and hundreds of lower-court judges Trump has hand-picked with the blessing of the religious right – who will be making decisions that affect virtually every aspect of American lives. In fact, those most likely to be impacted by right-wing court rulings are the same people protesting racial inequality – ie., poor Americans, and often poor blacks and Hispanics.
Stacking the court with conservative judges sets up a battle royale between liberals and conservatives, the likes of which we’ve never seen before. If you think things are divisive now, just wait, it’s about to get a whole lot worse.
Mitch McConnell has literally been gunning his whole life for the chance to mold the judiciary into an instrument for Republican values. His decades-long effort to transform America’s highest court began in the 1980s, when Democrats, who controlled the upper chamber, succeeded in blocking President Ronald Reagan’s pick for the bench, Robert Bork. During the Senate confirmation hearing, Bork engaged in lively discussion with Senators on both sides of the aisle, but he was also faulted for his bluntness. After five days of grilling, a Bork supporter asked the judge why he wanted to be an Associate Justice, to which he famously replied, “I think it would be an intellectual feast”. The flippant remark cost Bork the nomination.
Over the next few years, the court moved decisively to the left, with rulings on abortion, busing, protections for criminals, and gay rights. The Democrats were getting a lot of their agenda passed by the courts.
McConnell, then a first-term Senator, took the savaging of Bork personally, and threatened that he and his Senate colleagues would use the same tactics when it mattered, ie., when they held a majority in the Senate, and disagreed with a Democratic President’s choice of nominee.
His moment came in 2016, with the death of Justice Antonin Scalia. Replacing Scalia with an Obama appointee would result in five liberal justices, who were likely to move the court in a far more progressive direction.
McConnell, who by then had worked his way up to Senate Majority Leader, immediately put out a statement effectively saying the Senate wasn’t going to let President Obama decide the direction of the court. “This vacancy should not be filled until we have a new President,” he wrote.
Despite Obama forging ahead with his Garland nominee, McConell stuck to his guns, refusing to allow a confirmation hearing in the Republican-controlled Senate.
He finally had his revenge on the Democrats for ousting Bork, some 33 years earlier. Blocking a Supreme Court nominee was historic – it had never been done before.
Trump and the evangelicals
Meanwhile, candidate Trump was on the campaign trail hoping to beat Hilary Clinton. During a debate, Trump was asked whether he wanted to see Roe v Wade overturned. He predicted this would happen “automatically,” because he will put “pro-life justices on the court.”
Trump’s wooing of the religious right began with a list of his potential picks for the US Supreme Court (remember there was a vacancy due to the death of Antony Scalia) The list was curated by the Federalist Society – an organization of conservative legal activists, formed in the late 1980s – and the conservative Heritage Foundation. As The Guardian states, For evangelical Christians and other groups, the list signaled that Trump was a safe White House pick.
For Trump, it was a way to secure the backing of two powerful Republican organizations, and help to shore up his base, of which many were, and are, white, evangelical Christians. In retrospect, without that list, it is unlikley Trump would have become president.
He would go on to nominate Federalist Society favorite Neil Gorsuch in 2017, and Brett Kavanaugh in 2018, thereby locking up control of the court with five Republican nominees, along with scores of lower-court federal judges.
“These judges have all been vetted in terms of judicial philosophy,” The Guardian quotes Sheldon Goldman, a professor of political science at the University of Massachusetts at Amherst who focuses on the federal bench. “All believe in a bench that is not activist in terms of promoting civil libertarian values. But they’re activist judges in terms of promoting the values that are important to them – property rights, pro-business, anti-regulation.”
Forty years ago, evangelicals were at the margins of American politics. They considered politics beneath them and many were not even registered to vote. Today they are a major force in both American society and the political system.
The change agent was Jimmy Carter, who put faith at the center of his bid for the presidency in 1976. A southern Baptist and self-described born-again Christian, President Carter made it respectable, even mainstream, to harbor deeply religious views and talk about them in public.
Two years into his presidency, however, evangelicals began to question the disconnect between Carter’s faith and his public policy, which leaned to the left. For example they didn’t like his support for gays and lesbians, nor his backing of judges who supported the landmark 1973 Roe V Wade Supreme Court decision granting women the right to an abortion.
As the split between church and state became more obvious in American life, such as desegregating Christian colleges and dropping prayer in schools, evangelicals felt that their way of life, and a Christian nation, was under siege.
Rev. Jerry Falwell became the spokesman for a new breed of conservative preachers, who argued for a strong defense policy abroad and family values at home. They used television to spread their messages to a broader audience, spawning the term “televangelist”.
In 1980, Falwell stepped directly into politics through the formation of the “Moral Majority”, a political action committee that was anti-abortion, anti-women’s rights, and anti-gay. The idea was to politically organize evangelicals, fundamentalists, conservative Catholics and conservative Jews into a large voting block that would elect like-minded people to public office, and restore a sense of patriotism.
Their candidate was Ronald Reagan, who endorsed them at a group called the Religious Roundtable. Once elected, Reagan and the Republicans promised to appoint pro-life judges and support prayer in public schools. For the first time, evangelicalism became interlocked with the Republican Party.
But Reagan and subsequent Republican presidents didn’t do enough to satisfy evangelicals. Despite the election of Bush I and II, abortion numbers continued to climb, there was no return to prayer in public schools, and same-sex marriage turned to transgenderism.
Then came Donald Trump. Despite being the antithesis of everything evangelicals stood for, including having multiple affairs and using crude language, they appreciated Trump’s promise to “protect and cherish our Christian heritage”.
Today, Jerry Falwell Jr., head of the Christian university his father founded, is a huge Trump supporter.
Indeed white, evangelical Christians are a key part of the Republican coalition. In the last election, more than 80% of them voted for Trump, and they have stuck with the President through a series of scandals including allegations of infidelity and sexual harassment.
Why do they like Trump so much? He’s kept his campaign promises. According to Alex Morris, whose in-depth examination of the question appears in Rolling Stone, Trump is the first president in recent memory who has actively stuck up for them, after decades of being branded racists, homophobes, misogynists and theocrats.
What do they want?
Through his actions, Trump has made once-radical evangelical Christian views mainstream. Parsing Morris’s Rolling Stone article, columnist Paul Prather, writing for the Lexington Herald Leader, explains what most progressives will never understand: that rank and file evangelicals don’t hate gays, or women, they are simply “trying to manifest Gold’s love to the world.”
The problem is their concept of love is one progressives generally don’t comprehend.
Evangelicals believe in a God who’s equal parts mercy and punishment, who’s unyielding on matters of virtue and sin, who pardons the repentant but destroys the stiff-necked. They believe in a Bible that’s always right about everything. They believe in an eternal, joyous heaven and an eternal, agonizing hell.
From their interpretation of the Bible, they’re convinced human life begins at conception. Therefore, when a woman chooses to have an abortion, she’s choosing — whether or not she understands it that way — to kill her own child.
Compassion and justice demand evangelicals try to stop her from doing that, for both the child’s sake and the mother’s.
Evangelicals don’t loath women who are considering or who’ve had abortions. They love these women, and because they love them, they’re trying to save them from burning forever in a literal, fiery, unquenchable hell.
They don’t despise gay people, either.
Morris recalls how as a child she admired her gay Uncle Robert and his partner. Yet she and her family simultaneously believed Robert’s
AIDS was a plague sent on him by God.
If you’re convinced gay activity is sinful and that God will punish it, then love demands you try to persuade people to avoid what will only result in their unhappiness here and their damnation in the hereafter.
Yet for decades now, when evangelicals have expressed their beliefs publicly — beliefs that to them are self-evidently true — they’ve been branded as racists, homophobes, misogynists and theocrats. As haters. They consider this deeply unfair.
Worse, they’ve watched mainstream culture move farther and farther away from them. They fear God may pour out his wrath on the United States. They’re trying desperately to save their neighbors and themselves from retribution.
“The day that Obama put the rainbow colors in the White House was a sad day for America,” Morris’ aunt tells her. “That was a slap in God’s face. Abortion was a slap in his face, and here we’ve killed 60 million babies since 1973. I believe we’re going to be judged. I believe we are being judged.”
The irony is that evangelicals’ most tangible solution has become Donald J. Trump.
Packing the courts
Since coming to power in 2016, Trump has appointed federal judges who oppose abortion, supported religious freedom laws that ensure Christians can’t be forced to participate in gay marriages, and moved the US embassy in Israel to Jerusalem – a controversial decision popular among evangelical Christians.
According to Pew Research Center, in his first term, Trump appointed almost a quarter of all active federal judges in the United States, 194 positions, and has named more appeals court judges than any other president at the same point in their presidency (53). Obama appointed more judges than Trump (39%) but it took him two terms to do so. Another two-term president, George W. Bush, appointed 21% of all judges.
Trump has also been more likely than other recent presidents to pick judges who are white; 85% of the federal judges appointed through July 7 are Caucasian, according to Pew. Compare that to Obama’s appointments, 36% of whom were non-white.
It’s interesting to note that no Democrat has chosen a Supreme Court Chief Justice since 1953. Not since 1969 have Democrats nominated a Supreme Court majority. This means the court is far more conservative than the electorate. The Atlantic states the court is heading for a dangerous period, due to it being so far out of step with average Americans:
The number of voters who think the Court is too conservative hit a new high just last year. Historically, the Supreme Court has rarely broken too radically with public opinion without some kind of backlash. Yet today, the Court reflects the will of a smaller and shrinking slice of the electorate.
The Supreme Court reshaped by Trump has been called the most conservative-leaning court in modern US history. Consider the following decisions, tracked by BBC News:
As for what could happen to the court if Trump’s nominee is named, either before or after the election, should he win, the left-leaning Washington Post warns that A newly enhanced conservative court majority will continue to erode voting rights and rubber-stamp GOP voter suppression;
Even more urgently, it means the Affordable Care Act could be struck down, in a case the court is scheduled to hear this fall. If the administration and Republicans succeed, it would mean about 20 million people immediately losing their health coverage and tens of millions more losing protections for preexisting conditions.
That’s where Democrats’ focus should be: the threat a far-right Supreme Court poses. That court could take health care from millions, attack abortion rights, continue its war on collective bargaining and workers’ rights, eviscerate campaign finance laws to make it easier for the wealthy to buy elections, roll back environmental protections, and so much more.
Even if Joe Biden is elected and Democrats win the Senate, a conservative Supreme Court could strike down every law they pass as they try to enact the mandate they were given by the voters. That’s the future Americans need to consider.
The courts have become more conservative under Trump, but they have also become whiter, stretching a racial divide among that, in my opinion, will only get wider if Trump gets re-elected and another white conservative gets placed on the bench.
Unfortunately, religion in America has a history of being tinged with racism. Jerry Falwell and his fellow southern, white conservative pastors supported racially segregated schools and universities. They also feared that segregated academies would lose their lucrative tax exemptions. As Al Jazeera states, in an article entitled ‘The Power Worshippers: A look inside the American religious right’:
The influential pastor Bob Jones Sr went so far as to call segregation “God’s established order” and referred to desegregationists as “Satanic propagandists” who were “leading colored Christians astray”.
Pro-slavery theologians, like Christian nationalist thought leaders today, were intensely hostile to the principle of equality, plurality and critical thinking. They endorsed an austere biblical literalism and rigid hierarchies, which they asserted were ordained by God.
The idea the US is a Christian nation, chosen by God; that it should be an orthodox Christian republic; that women should be subordinate to men; that at some point America deviated horribly from its mission and fell under the control of atheist and/or liberal elites – these ideas are still at the heart of Christian nationalism today…
I would take the conservatism of the courts a step further. With the Supreme Court now stacked with religious conservatives, for the next 30 to 40 years, their decisions such as right to life will inflame the left, and set the table for a series of ideological battles for years to come. Once thought of as an impartial chamber of sober second thought, the court will now be highly politicized, a powerful instrument of change, created and wielded by the Republican Party.
Affordable health care, affordable homes, the right to an abortion, to privacy, all are under threat. Decisions that favored liberals over the past couple of years could now be overturned by a court that favors conservative opinions over moderate or liberal ones. The longer this goes on, the more radicalized the religious right will become, and impose their views on the rest of society.
Meanwhile opposition to them increases, widening the gap between the rulers and the ruled, between the haves and the have-nots. I believe the ensuing protests over unpopular court decisions will light the entire US on fire.
Richard (Rick) Mills
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