The Gathering Storm
2017 may be remembered as the year that set in motion battles that will be resolved in 2018, which could be the most consequential year since 1968.
If America still has legitimate historians a century from now, if we somehow still are a democratic republic, our descendants will look back on 2017 with a mixture of bewilderment and disdain. Why did so many policymakers and legislators implement so many policies that were so manifestly unpopular? Why did so many otherwise reasonable people unmoor themselves from facts and evidence and tie themselves to conspiracy theories based on the darkest impulses of our nature? What sort of madness lay over the land and could we see, even in the first year of the Trump era, not just signs of resistance but inklings of a restoration?
The miserable, nasty, disheartening year we are about to leave no doubt meant different things to different people. To me, looking at the intersection of law and politics, it mostly meant a precursor to what we can expect in 2018, a year that quite possibly could be one of the more consequential and contentious in modern American history. From the looming new tax law to the DACA children to marijuana policy to the administration's Russia scandal, virtually every major question raised by the events of the year may be answered next year. And that is all before we all vote next November to determine whether Republicans maintain their stranglehold on Congress.
Take the Supreme Court, for example. By contemporary standards the term that ended in 2017 was substantively a dud. There were few memorable rulings, and plenty of unanimous decisions in relatively minor cases, as John Roberts and company sought to navigate through most of the term with eight justices split 4-4 along ideological lines. The arrival of Neil Gorsuch at the court in April was by far the biggest legal story of the year. His nomination and confirmation highlight the most significant achievement of the Trump administration so far; the repopulation of the federal judiciary with conservative ideologues, many of whom are unqualified for the life-tenured jobs they've just been handed. Gorsuch himself is plenty qualified but the practical impact of his presence on the court will only really begin to be felt next year, when the Court begins to churn out one conservative ruling after another.
The 2017-as-prelude theme unfolded in other ways as well:
1. You've probably already read, in a 1,000 different places, how 2017 was the year in which we learned how fragile is our rule of law; how much of it has always depended on good-faith interpretations of norms and standards. 2017 was the year in which that good faith disappeared in many instances. We saw this in the way the president continuously attacked his own Justice Department, and the FBI, and any federal judge who dared to apply the law in ways with which the administration disagreed. We saw it in the way the Trump team disregarded ethical norms involving financial disclosures. We saw it in the way the White House sabotaged federal agencies, from the EPA to Interior to State. We even saw it last week with the banning of certain words by the Centers for Disease Control. This is, as the 2017 phrase goes, “not normal.” We will continue to see these attacks in 2018. How our institutions, including Congress and the Supreme Court react to them, will help shape the year ahead.
2. The president and his tribunes are delusional if they think Special Counsel Robert Mueller's sprawling probe will be over in the next few weeks. There is nothing in the public record to suggest this is so. Instead, we saw as the year progressed the investigation intensify and Republican (and propagandist media) opposition to it get louder. The closer the probe has come to the president himself, the more evidence that has been unearthed of misconduct by Trump officials, the more shrill the criticism. That such criticism would come from the White House and Fox News is not surprising. That it would come from members of Congress is disturbing given how much evidence Mueller and company uncovered in 2017 about dubious contacts between the Russians and Trump's men. Something's gotta give. Something will give in 2018.
3. It has been easy for the White House to spin the Mueller probe as a partisan witch hunt despite all evidence to the contrary. More challenging has been the implementation of Trump administration policies designed to quell the opioid epidemic. Around the country, in big cities and small towns, people are petrified about the toll the epidemic is taking on their families and communities. It's a problem with which they can identify in ways they cannot with the Russia probe, or the struggle over emoluments, or many of the other Washington-centric fights that have dominated news coverage this past year. The Trump administration has talked a lot about solutions but has failed or refused to do more to save lives (no, promising to put more drug dealers in prison doesn't accomplish this goal). Here is a campaign promise Trump most definitely failed to keep. How the administration deals with this crisis in 2018 will help determine who controls Congress in 2019.
That's where we've been. Here are a few more predictions about where we may be headed.
1. There will be more indictments and/or plea deals as a result of the special counsel's investigation into the Trump team's ties to Russia. It would not surprise me if the president's son-in-law, Jared Kushner, is indicted or pleads guilty. And if that happens, or if either or both of the president's sons find themselves in more legal jeopardy, it will create the showdown between Mueller and the president so many of us have been expecting. Does Mueller survive that? I am not sure. It may depend on the courage and integrity of a handful of Republican senators who months ago pledged their support for the special counsel but who have waffled in recent weeks.
2. Attorney General Jeff Sessions will in the coming year make some sort of substantive move to undermine either medical marijuana laws, or recreational marijuana laws, or both. The first blow could come soon if Congress does not extend the protection it has exerted over the past few years to block federal interference with lawful medical marijuana programs. The Justice Department will do this despite the 10th amendment, and federalism concerns, and in the face of broad bipartisan support for medical marijuana laws where they now exist. The Justice Department will do this despite the awful economic consequences it will cause to those who have lawfully invested in this industry.
3. The Gorsuch-infused Supreme Court will strike the blow against public unions that Justices Samuel Alito and Clarence Thomas have been hoping to land for years. That's a no-brainer. But the justices will be less emphatic in the political redistricting cases now before them. I wouldn't be surprised if Chief Justice John Roberts and Justice Anthony Kennedy broker a compromise in those cases that somehow limits the partisan impact of gerrymandering. I also wouldn't be surprised, speaking of big Supreme Court cases, if the justices choose not to expand the concept of “religious freedom” in that Colorado bakery case. I believe Justice Kennedy won't want to tarnish the gay rights legacy he has forged over the past two decades. Finally, I would be more surprised than not if Justice Kennedy retires, as so many have predicted.
There is good chance amid all of this that 2018 will be as transformative and as politically explosive a year in American life as was 1968. Whether that's a good thing or a bad thing will depend entirely on what the transformation looks like and which side of it you are on.
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.