‘These are the first signs of fascism,” said the comedian and former Daily Show reporter Aasif Mandvi. “Trump isn’t even president yet and he’s already eroding our democracy,” warned Robert Reich, labour secretary under Bill Clinton. Both men were reeling from the Trump news conference last week — an event that many of the president-elect’s opponents saw as a taste of things to come.
But freedom-loving Americans should not panic. There are eight of their fellow citizens (soon to be nine) whom Trump cannot sack, intimidate, bribe or (crucially) ignore. Not for the first time America’s Supreme Court is to move centre stage in the political process.
The Supreme Court has become famous of late for allowing stuff to happen: in particular gay marriage. But much more important is its power to stop stuff happening; to say to politicians and the public that whatever wheeze they’ve cooked up is illegal because the constitution would be broken. And that is that. There is no appeal.
The case of Terri Schiavo is instructive. When George W Bush was at the height of his powers in 2005 Ms Schiavo’s fate gripped the nation. She had collapsed years earlier and was declared brain dead. Her husband wanted her to be allowed to die; her parents did not. The courts sided with the husband but politicians took up the case and the evangelical masses who had just re-elected Bush were mobilised. It soon reached Republican-controlled Congress where a bill was passed late one night to keep her alive — Bush flew back from his Texas ranch and signed it in his pyjamas at eleven minutes past one in the morning. This was the political class on a mission — a mission from God as many of them believed.
But the courts said no. The Supreme Court, asked urgently to review the matter, refused even to hear the case. And Ms Schiavo was allowed to die. This is the true barometer of American freedom. When the president and all his men and women and all his supporters want something, and that something is refused, the system is working.
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There is a catch in this argument. Supremes are appointed by the sitting president. Last year Antonin Scalia, a staunch conservative justice, died. Obama wanted to replace him with a tepid liberal but Congressional Republicans refused even to consider his nominee so now the task passes to Trump. His choice will reverberate down the generations.
Some of his potential picks would certainly give the American left palpitations — one is Judge William Pryor, who described Roe v Wade (the case that makes abortion legal across the US) as “the worst abomination in the history of constitutional law”.
But wait. Pryor’s appointment would simply take the court back to a 5-4 balance in terms of Republican and Democratic party picks: and because the Reagan appointee Justice Kennedy is a socially liberal Republican, nothing much changes. It was Kennedy who cast the deciding vote for gay marriage in 2015 — an act, you could argue, that pushes America in a liberal direction as much as any Obama policy ever did.
But what if Kennedy, who will be 81 in July, called it a day? Or Justice Ginsburg, a Clinton appointee who is 84 years old? Or Justice Breyer, another Clinton appointment who is turning 79? For all the talk you are going to hear in the next few weeks about the Trump Supreme Court choice it is actually his next choice, if it comes, that might really make the difference.
A court that is tilted 6-3 in favour of broadly conservative values, including two Trump appointees, would be a robust opponent of urban liberal atheist America. The prospect of Roe v Wade being overturned would be very real. But would that extend to those vital areas where the Supreme Court is meant to tell the executive branch that things it wants to do are unconstitutional and therefore illegal? The obvious example is Trump’s threatened ban on Muslims entering the US. His own vice-president, Mike Pence, says it would be unconstitutional. Could Trump succeed in appointing justices that might side against the entire US establishment, including the vice-president?
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I doubt it. Yes, Trump is different and is bringing change to Washington. All right: revolutionary change. But America is still America. A right-wing Supreme Court is still a court separate from the White House. A Trump effort to appoint a rightwinger who would do his bidding and allow the president’s authoritarian streak to flourish would simply not pass the Senate, where a filibuster rule allows the Democrats to hold up appointments, and where independent-minded Republicans would shoot the effort down.
During the Bush presidency the feminist author Naomi Wolf wrote a book called The End of America because, she suggested, the war on terror and the domestic surveillance that went with it amounted to “fascist tactics”.
Within a few years, America freely elected Barack Obama and George W Bush went quietly into retirement. America survived. Its core is strong and its presidents are weaker than they seem. Trump may well get to reshape the Supreme Court and for liberal Americans that will be tough. Despite it, though, the US will remain a nation of institutions and laws, not of men. Mr Trump may not know that. But he’s about to find out.