Budowsky: Trump-like high court would create powerful midterm repercussions

Today, voters witness former President Trump promulgating big lies to claim he won the 2020 election, Republicans pushing to install election officials who could help steal elections in 2022 and 2024, the Republican National Committee censuring two prominent party members and claiming the crimes of Jan. 6 were legitimate political discourse, and the Supreme Court showing signs of having Trump-like tendencies that will further foment a powerful national backlash.

Politically, voters are witnessing the Republican Party at war with itself, with former Vice President Pence and many other high-level Republicans speaking out strongly against violations of the integrity of American elections.

I warned about the danger to SCOTUS in two December columns, one of which praised Chief Justice John Roberts (a view I hold today).

What are Trump-like tendencies that could define the Supreme Court, which is already suffering from declining public approval?

The first tendency is ethical. I propose the Supreme Court needs new ethical standards and rules to avoid widespread negative perceptions, at best.

The second tendency is ideological. There is a growing appearance of five conservative Republican-named justices (not including Chief Justice Roberts) who are giving ominous signs that they view the current court term as an opportunity to dramatically move the law to the right on sensitive issues including abortion, affirmative action and voting rights.

Regarding the ethical issues, creating the appearance of ethical problems and potentially the reality of them, last week Justice Neil Gorsuch gave a speech to the Federalist Society.

I offer no criticism of the Federalist Society or Justice Gorsuch addressing the organization. They have every right to invite him and he has every right to appear.

The first problem is that members of the media were not permitted to attend and report on the speech, and the general public was largely excluded from what Justice Gorsuch said.

The Federalist Society has every right to have interests involving issues that will be decided by Justice Gorsuch and SCOTUS. But when a sitting justice appears before a group with dramatic interests in those issues, whatever that justice says should be 100 percent in the public domain. Period.

The second problem was whether Justice Gorsuch was paid for the speech. When asked at the time, the Federalist Society and the Supreme Court declined to comment. To be fair, I sent two separate media inquiries to the Supreme Court about this speech. Neither inquiry was responded to.

An appropriate ethics code would be that justices should not make paid speeches. If the court disagrees with this, all payments should be fully and immediately disclosed. Period.

There is also a grave danger that five justices, like Trump, view the court as an opportunity to make ideological power moves rather than fair and neutral decisions of law.

SCOTUS will almost certainly overrule Roe v. Wade. If any version of the Texas law is upheld, that is an effective reversal of a right that had been settled law for decades.

On Monday, SCOTUS reinstated (with Chief Justice Roberts dissenting) an Alabama gerrymandering law that a lower court had ruled disenfranchised minority voters. While SCOTUS will ultimate hear the case, it didn’t say when. The effect will probably force the disenfranchising law to apply to the 2022 midterms, whatever SCOTUS decides.

SCOTUS will consider a significant number of voting rights cases with, probably, a similar outcome, along with other contentious issues such as affirmative action (which SCOTUS will very likely rule against).

SCOTUS runs the risk of being perceived as having ethical lapses (like Trump) and having a majority of justices (acting like Trump) treating the law as an ideological weapon.

Regarding the midterms, a large number of voters will be outraged by these tendencies if they continue. While this will lift Democrats, it could create a tragic fall of public confidence in the Supreme Court and the rule of law in America. 

I pray the five Republican conservative justices will consider this danger, which only they can prevent.

Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the House of Representatives.