06.16.2017
  • United States

Control the Supreme Court, Control the Republican Party

Why does the GOP stick with Trump? It’s all about the judges.

Supreme Court justice Neil Gorsuch is sworn in on April 10, 2017. US Supreme Court

Throughout Donald Trump’s time in the White House, I’ve been wondering, like many others, what it would take for the GOP to break with Trump.

I never thought for a moment that they’d break with him over a question of law or constitutional principle or democratic norms or political propriety. My working assumption, for most of this time, has been that if they felt like their tax cuts were in jeopardy, they might jump ship, tax cuts being the one thing that unites the party and that they know how to do. But things aren’t looking good for the tax cuts, and I see no signs of any break.

So we’re left with the question: why is the GOP sticking with Trump? They’re getting so little from him, relative to Republican presidents past. Consider the following:

According to yesterday’s Wall Street Journal, Democrats still control the National Labor Relations Board and are helping shape its agenda. That has created considerable consternation among the business lobbies that depend upon Republican antipathy to organized labor dictating the outcomes of federal agencies.

In the last couple of weeks, the Journal and the Times have reported on similar phenomena at the Federal Regulatory Energy Commission (new oil and gas pipelines are having a tough time getting approved) and the Commodity Futures Trading Commission (no easing up on Obama-era regulations of the futures market) and the Justice Department, where classic Trumpist issues like gangs, antiterrorism, and drug trafficking are getting short shrift because Trump has failed to appoint a single US attorney to replace the ninety-three US attorneys he fired back in February.

Even on immigration, the Washington Post recently reported that the Trump administration has approved or renewed hundreds of thousands of DACA permits for immigrants — much to the rage of Trump’s anti-immigrant base.

I’ve been flagging Trump’s failure to exercise control over the state apparatus for a while, and one of the counterarguments is that this is part of Steve Bannon’s plan to downsize the state.

But these failures to control the state don’t just involve the soft welfare-ish side of the government. Some of these failures are making it difficult for Trump to pursue the nastiest, most coercive parts of the hard-right agenda that no one doubts Trump, Bannon, and the hard right wish to pursue.

And remember: where some of Trump’s failures have to do with his inability to get the cooperation of Congress or the courts, these are the areas of executive power where Trump has a relatively free hand, where he can act without a lot of consultation or interference. He simply hasn’t exercised it.

So what keeps the GOP, particularly the elite sectors, with Trump? Like David Dayen, I’ve begun to think it all comes down to the judiciary.

Trump has gotten one Supreme Court appointment, he may well get more, and he’s moved more quickly on lower-court appointments than Obama did. The legal arm of the conservative movement is probably the best organized, most far-reaching and far-seeing sector of the Right. They truly are in it — and have been in it — for the long game. Control the Supreme Court, stack the judiciary, and you can stop the progressive movement, no matter how popular it is, no matter how much legislative power it has, for decades.

It may seem ironic that a movement that came to power on the basis, in part, of a populist surge against “activist judges” would come to rely upon the judiciary as its most reliable weapon. But it’s not: while conservatism, from its beginning, has struggled to be an elitist movement of the masses, a populist movement for privilege, it has never departed from its elitist origins and supremacist mission. Going back to the rotten boroughs and lords of early nineteenth century Britain, the Right has always relied upon the least democratic sectors of the state. With this embrace of the judiciary as its last bastion of power, the Right has come home.

If there is an irony here, it is this: since Trump’s election, and before that, liberals have seen the Constitution as the greatest weapon against the hard right. But long after Trump is gone, the hard right will be relying upon the judiciary — and behind that, the Constitution — to protect their gains.

As was true of the late nineteenth and early twentieth centuries, the Right will depend upon unelected judges interpreting the law, in defiance of the popular will. The very thing, in other words, that liberals think is the antidote to Trumpism — the Constitution — will turn out to be its long-term preservative, the elixir of life.