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Gorsuch’s Swearing-In Ceremony Was Designed to Coax Justice Kennedy Off the Bench

Photo by Eric Thayer/Getty Images

U.S. Supreme Court Justice Anthony Kennedy shakes hands with new Justice Neil Gorsuch as his wife Marie Louise Gorshuch and President Donald Trump look on during a ceremony in the Rose Garden at the White House.

On Monday morning, Neil M. Gorsuch was sworn in as the ninth justice of the United States Supreme Court. You may call Gorsuch whatever you like—interloper, cipher, beneficiary of a stolen seat—but his formal title is now “Justice.” He will soon cast a vote in a series of blockbuster cases involving LGBTQ rights, abortion access, voter suppression, union dues, campaign finance law, environmental regulation, and separation of church and state. Justice Gorsuch is almost certain to side with the other Republican appointees on each of these issues. The court’s familiar 5-member conservative majority has been restored.

At the sunny swearing-in ceremony in the Rose Garden, Donald Trump cheerfully reflected on the political machinations deployed to get Gorsuch on the bench: He thanked Senate Majority Leader Mitch McConnell in absentia “for all that he did to make this achievement possible”—meaning, presumably, his astonishing blockade against Barack Obama’s choice for seat, Merrick Garland, and his decision to abolish the filibuster to get Gorsuch through the Senate. Trump also praised Republican Sen. Charles Grassley, chairman of the Judiciary Committee, who played a key role holding the line on the Garland blockade. But true to form, the president reserved the most meaningful praise for himself.

“I’ve always heard,” Trump said, “that the most important thing that a President of the United States does is appoint people, hopefully great people like this appointment, to the United States Supreme Court.”

“And I got it done in the first 100 days!” he added. “That’s even nice! You think that’s easy?” The crowd, which included every sitting Supreme Court justice, applauded politely. Gorsuch looked slightly embarrassed.

The speech was an indication that the conservatives who masterminded Gorsuch’s nomination—mostly Heritage Foundation and Federalist Society men who have cast their lot with Trump—are not done. Gorsuch once clerked for Justice Anthony Kennedy, and conservatives likely floated him specifically for this reason. They hope, rather transparently, that Kennedy will now feel comfortable stepping down and entrusting Trump to select his own successor. It is no coincidence, then, that Trump used the opportunity to also read a brief encomium to Kennedy, a justice “praised by all,” and allowed him to read his own stately remarks. When a beaming Kennedy finally administered the oath to Gorsuch, Trump watched with a look of elation. He is well aware that if he can coax Kennedy off the bench, he can grant conservatives control over the court indefinitely. No wonder he is reportedly “obsessed” with the next vacancy. He is already endeavoring to create it.

The Supreme Court has never been entirely above politics. It has often suffered from partisan battles over its personnel. But what happened on Monday—and over the 14 months preceding it—was truly unprecedented. In order to secure a justice who would vote to limit minority rights, hobble unions, and obliterate campaign finance restrictions, Republicans changed the rules of the game. Their justifications are nonsense: Garland, they insisted, would be a trespasser to “Scalia’s seat,” as though some dynastic dictate barred a Democratic president from replacing the late conservative Justice Antonin Scalia. Then Republicans changed the rules again, electing to eliminate the filibuster rather than attempting to compromise with Democrats. The result of these stratagems is a more politicized court and a new justice viewed by one party as illegitimate.

Who wins? Trump, of course—along with the corporations, red states, and conservative activists who are about to triumph at the Supreme Court. Every time the court votes, 5–4, to further devastate class actions, or permit voter disenfranchisement, or invalidate limits on political donations, Trump can take some credit. He has left his mark on the highest court in the land, one that will remain long after he has left office. The 49-year-old Gorsuch, after all, may well serve for more than three decades. He will spend much of that time making it easier for Republicans to seize and maintain power. And the rest of us will spend the next 30 years marveling that the GOP managed to steal a Supreme Court seat under the pretext of politics as usual.