Trump's hard right Supreme Court puts Arab-Americans at risk

Trump's hard right Supreme Court will put Arab-Americans at risk
6 min read
29 Jun, 2018
Comment: This SCOTUS term has taught us the court is willing to provide a great deal of deference to the president under the guise of national security, writes Marcus Montgomery.
Trump now has the opportunity to select another judge-for-life [Getty]
On June 27, the Supreme Court of the United States (SCOTUS) wrapped up its 2017-2018 term with an unsurprising, but no less consequential announcement: 81-year old Justice Anthony Kennedy would be retiring.

Kennedy, over his 30-year stint in the nation's highest court, developed the reputation as the body's "swing-vote", meaning he often cast the decisive vote after the other justices divided along party lines.

Due to his reputation as an open-minded justice who sought not to be pigeonholed by ideology, American liberals would often craft their arguments to win over Kennedy, seeing the court's more conservative Republican appointees as lost causes.

Although Kennedy long lived up to that persona of impartiality and willingness to buck his party, his decisions during this last term may be a clear indication of where the court is headed in the future.

Associate Justice Kennedy sided with his conservative counterparts in every single one of the 13 decisions that ended 5-4, often signing on to the ultraconservative opinions of his colleagues on the right.

His resignation is effective 31 July, giving President Donald Trump another opportunity to fill a Supreme Court seat, which he has vowed to use to implant a reliably conservative jurist, one unlikely to be in the centre as Kennedy long was.

Makeup of the next SCOTUS

Mr Trump will have the opportunity to select another judge-for-life as early as this autumn, and, given the adoration and praise he received from his political base for selecting an ultraconservative Federal Court of Appeals judge by the name of Neil Gorsuch, we have every reason to believe that he will choose someone at least as, if not exceedingly, conservative.

What seemed like an aberration this term will prove to be the new normal

If that is the case, and an avowed "literalist" like Senator Mike Lee (R-Utah), or his brother, Thomas who serves on the Utah state Supreme Court, or any number of the candidates recommended to the White House by the conservative Federalist Society reach the bench, then what seemed like an aberration this term - Kennedy overwhelmingly siding with the conservatives on the court in every instance - will prove to be the new normal.

Indeed, some calculate that anyone the president is likely to pick will be grounded heavily in conservative jurisprudence and that will make the court's "political centre" embodied by Chief Justice John Roberts - a man not exactly known for his willingness to side with liberals.

Consequences of a hard right Court

This may end up to be one of the most consequential Supreme Court fillings for generations.

It will sufficiently push the court to the right on matters ranging from gun rights, abortions, same-sex marriage, gerrymandering, and a host of issues that may not even arise in the immediate future. Whomever is chosen, there is cause for concern for all monitories' civil rights - but Arab-Americans could be exposed to particularly troubling rulings under an administration like Trump's that is "checked" by a hard-right SCOTUS.  

Civil liberties can be rolled back in the name of national security

If there is anything this SCOTUS term taught us, it is that the court is willing to provide a great deal of deference to the president under the guise of national security.

The 5-4 decision to uphold President Trump's travel ban on citizens from seven countries - five of which are majority-Muslim - proves that if the Executive Branch gives a "facially legitimate" reason to enact such a sweeping plan, as Chief Justice Roberts wrote in the Trump v. Hawaii opinion, conservative justices are willing to uphold that prerogative, no matter what kind of seemingly intolerant and/or religiously biased statements that same administration may say about the individuals being barred from the country.

Read more: Justice Kennedy's replacement will be an even greater enemy of Arab-Americans

Now, it is true that many of the individuals in question are foreign nationals with no particular protection under the Establishment Clause of the Constitution - the one that prohibits the government from favouring or discriminating against a religion or lack of religion - but the Court has long held that discrimination akin to that instituted through the president's executive order does indeed suffer damages onto legitimate American citizens that are protected by that very constitution.

This could be especially acute for the Arab-American community that may seek to relocate their families to the United States for school, work, or safety and are denied that right by the president's ban.

Though it seems like American democracy has the safeguards in place to protect Arab-Americans from violations of their rights, those safeguards - including SCOTUS - do not always work.

As we have seen in the past with the use of internment camps, arbitrary detentions of Arabs and Muslims, and mass surveillance, the Supreme Court often refuses to interfere with national security issues - so it is difficult to imagine a hard-right SCOTUS striking down any kind of discriminatory act if it is invoked as a national security priority.

Access to the political process is arbitrary, apparently

The issue of gerrymandering - arbitrary drawing of Congressional districts to reduce the influence of one group over another - was repeatedly upheld, if heard at all, this term and that is bad news moving forward.

Upholding the integrity of the political system for all Americans should have been an issue a true centrist jurist could have sided with liberals on, ensuring that people are truly represented in a government founded on the premise of representative republicanism.

However, if Kennedy could not be swayed, there is little doubt that gerrymandering laws would be deemed legal across the country under an even more conservative court. That is important, too, because the ruling parties in almost every state get to draw Congressional district lines after every US census - the next one coming in 2020.

For the Arab-American community, this could prove disastrous if gerrymandering is allowed to persist
For the Arab-American community, this could prove disastrous if gerrymandering is allowed to persist.

Large Arab-American communities reside in states with full Republican control of the redistricting process (eg, Michigan, Ohio, Florida, and Texas) and the GOP has proven adept over the years at "packing and cracking" populations that vote frequently and tend to vote for Democrats, like Arab-Americans, and ultimately reducing their political representation to the nation's capital.  

The already demonised Arab-American community now faces the prospect of ever-diminishing civil liberties and institutions that will do nothing to protect them.


Marcus Montgomery is a Junior Analyst for Congressional Affairs at Arab Center Washington DC.

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Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, al-Araby al-Jadeed, its editorial board or staff.