Americans were shocked to learn, on Wednesday night, of the retirement of Supreme Court Justice Anthony Kennedy. Regarded as a ‘swing vote’ on the court, Kennedy’s decision allows President Trump to appoint his second justice in just two-and-a-half years and cement its conservative majority. Just one day earlier, the court – even with the supposedly moderate Kennedy sitting – voted to uphold the President’s ‘I can’t believe it’s not a Muslim ban’. With the prospect of an increasingly conservative court, comfortable upholding even the most extreme elements of Trump’s manifesto, and perhaps undoing decades of social progress, the importance of November’s House and Senate elections has increased exponentially.
Any A-level politics student could explain the principle of the separation of powers set out in the US Constitution. The executive, legislature and judicial branches of government – each with their strictly defined powers – keep one another in check. In the hyper-partisan reality of modern America however, this is rarely the case. With control of the Oval Office and both Houses of Congress, Republicans are able to introduce, pass, and sign into law virtually any legislation they want. Their only obstacle to banning abortion, punishing sanctuary cities and – until recently – the travel ban, has been the courts. With the prospect of a new conservative judge replacing Kennedy, it seems the right will soon control all three branches – at least until November.
In a normal year, the chances of Democrats overturning a 34-seat majority in the House of Representatives would be close to zero; this is no normal year. Trump’s approval rating is languishing in the low forties (historically a good indicator of the President’s party’s midterm performance) and the Dems lead ‘generic ballot’ polls by an average of around seven points. At this stage, still of course months away from the first votes being cast, The Economist gives the Democrats a 2 in 3 chance of taking the House.
Their prospects in the Senate are, however, hampered by a highly unfavourable electoral map. Of the thirty-three seats up for re-election, the Democrats already hold twenty-four, leaving just nine GOP seats to target. What’s more, of the eights states with Republican seats up for grabs (Mississippi has two), only Nevada voted for Clinton in 2016. The scale of the task for Democrats in these midterms therefore reflects its importance.
Congress is the only branch of government with legislative initiative. If the Democrats can claw control back, they can block the construction of Trump’s vain and ridiculous border wall, end Republican efforts to tear apart the Affordable Care Act (which would leave millions without insurance) and prevent the further slashing of taxes for the richest. Of course, the role of Democratic Congress under Trump would be mainly defensive. The Commander-in-Chief would still be able to veto efforts to relax immigration controls, introduce Medicare for All or strengthen LGBT+ rights but such a stalemate would still be favourable to an unshackled Republican party.
The months between now and the midterms, depending on when Justice Kennedy’s replacement is confirmed, are effectively a trial run for that prospect. As election day approaches, we can expect Trump’s proclamations and provocations to become even more extreme, a reversion to his bombastic campaign-rally style. It’s also likely that Republicans will see this window as an opportunity to pass yet more controversial legislation, recognising the rare privilege of controlling all three branches of government. Perhaps an enhanced travel ban or a new attack on minority communities under the guise of preventing voter fraud.
In the Senate, if not the House, the odds are against the Democrats in the most important midterms for a generation. Until Justice Kennedy’s retirement, the Supreme Court represented the only real barrier to Trump’s most extreme policies. With another conservative justice set to join the bench, that barrier may soon be gone. If the separation of powers is to remain in any meaningful way, the Democrats must win the midterms.