The week's big question: What's the future of the Supreme Court?

The Week Staff
A crystal ball.
Illustrated | iStock

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This week has been dominated by the death of progressive icon and Supreme Court Justice Ruth Bader Ginsburg. With President Trump poised to nominate his third conservative justice to the nation's most important judicial body, this week's question is: What will be the biggest consequence if Trump gets his nominee seated on the Supreme Court? — Nico Lauricella, editor-in-chief at TheWeek.com

A strengthened conservative coalition

A new and newly invigorated kind of conservative coalition is likely to be the biggest consequence of a third Trump appointment to the Supreme Court. When Trump shows that he can deliver for such traditional constituencies on the right as the Federalist Society and Christian conservatives, he strengthens the bonds between his brand of nationalism and the older Reaganite coalition. The result is to revive the fortunes of the older parts of the right while giving them strong reasons to support populists like Trump in the future. This makes Trump as important a figure on the right, in cementing a coalition into a single movement, as President Reagan was. And that will shape our politics for a long time to come. Just consider how the Republicans who took over Congress after the 1994 midterms aspired to be seen as Reaganites, or the way that George W. Bush's supporters portrayed him as more Reagan's heir than his own father's. If Trump is able to get a strong conservative confirmed in the midst of a re-election effort, he will have shaped the right for years if not decades to come, whether he wins the White House again or not.

The irony is that just as Reagan's Supreme Court nominees Sandra Day O'Connor and Anthony Kennedy wound up becoming swing votes rather than reliable conservative ones, Trump's success in adding another justice may prompt Republican-appointed justices John Roberts and Neil Gorsuch to move to the center to re-balance the court and preserve its elite prestige. This means a hard right turn in the court's jurisprudence is not to be expected. The political ramifications of Trump's SCOTUS success are apt to be wider than the legal ones.

The slow rollback of marriage equality

In the wake of Ruth Bader Ginsburg's death, many progressives mourned not just the justice herself, but also the liberal precedents imperiled by her passing. And rightly so: Even Obergefell v. Hodges, the Supreme Court's marriage equality ruling, will be in jeopardy if Donald Trump fills Ginsburg's seat.

Obergefell did not merely guarantee same-sex couples in every state the right to obtain a marriage license; it also ordered states to grant same-sex couples "the constellation of benefits" that are "linked to marriage." The most important marital benefit is the right to establish legal parentage over children. Yet after Obergefell, some states refused to recognize married same-sex couples as the parents of their own kids. In 2017's Pavan v. Smith, the Supreme Court struck down an Arkansas law that discriminated against same-sex mothers. Three conservative justices dissented. Now Indiana is asking the court to uphold a virtually identical law, and the justices could hear the case early next year. Meanwhile, the Trump administration is fighting in court to deny American citizenship to the children of gay U.S. citizens born via surrogacy abroad.

If Trump rams through another conservative, there may well be five votes on the Supreme Court to begin plucking stars out of the constellation of benefits so recently extended to same-sex couples. The new majority might not overturn Obergefell immediately, but it can quickly roll back marriage equality by targeting basic rights for LGBTQ parents. After that, more protections — inheritance rights, survivor benefits, hospital visitation — could fall.

The immediate threat to marriage equality isn't an outright reversal of Obergefell. Conservatives are too smart to provoke such backlash. The real danger is that the Supreme Court will claim fidelity to precedent while turning same-sex couples' marriage certificates into meaningless pieces of paper.

A return to the Supreme Court of 2006

For many Americans, any Supreme Court nomination is shaded by its probable effect on abortion, specifically the fate of Roe v. Wade (1973). Overturning Roe is a consuming goal (and voting rationale) for many pro-lifers, and President Trump's rumored choice of pro-life jurist Amy Coney Barrett for SCOTUS has been widely received as Roe's death knell, as it would make a six-three GOP-chosen majority.

But I'm unconvinced this will be the abortion ban fait accompli many assume. In fact, I think the biggest consequence would be a return to something very like the mid-2000s court — not the identical composition, but a similar one (particularly given Chief Justice John Roberts' swing vote) with a similar overall balance of power thanks to likely Democratic control of part or all of the other branches of government come January.

In 2006, the president was Republican. Both congressional majorities had been Republican for a decade, and the court had a five-seat Republican-appointee majority. Yet Roe remained intact, and there was never any risk it wouldn't. In 2007, SCOTUS upheld 2003's Federal Partial Birth Abortion Ban Act in Gonzalez v. Carhart, a pro-life victory. But Carhart wasn't the hoped-for triumph of trifecta conservative governance, and its decision acknowledged "precedents we here assume to be controlling," i.e. precedents including Roe.

Generally, as attorney David French noted last month, SCOTUS is a force of "stability, not change, in abortion law," and "[e]ven if Roe is overturned, abortion will be mostly unchanged in the U.S." Barrett herself has predicted exactly this stability, emphasizing Roe's limited import and musing that SCOTUS may change its parameters for some state regulations but is unlikely to alter the core abortion right. And the most recent such regulatory ruling, with a five-four conservative majority, was a pro-choice win.

The further trampling of voting rights

When considering saboteurs of democracy, it's frustrating that so few bother to look in the direction of Chief Justice of the Supreme Court John Roberts. In his 2013 majority opinion in Shelby County v. Holder, which all but gutted the Voting Rights Act, Roberts wrote "history did not end in 1965" to assert the novel notion that America has risen to the mantle of a colorblind society. Thus, with respect to the major tools that help enforce the VRA, he ruled, our work is done and it is time to press on.

The late Justice Ruth Bader Ginsburg countered with an analogy in her minority opinion: "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet." It was a nice but no less direct way of saying cut the B.S.

Indeed, Roberts is said to have long "had it in for the Voting Rights Act," and with Shelby County v. Holder, he made clear the fix was in. Donald Trump flagrantly admitting that he aims to use his pick to replace Ginsburg to help him maintain power is alarming, but let's not pretend American democracy hadn't already been corrupted. Instead, Trump will just be giving Roberts more opportunities to make it all the harder for Black people to vote in purportedly free and fair elections.

Still, the loss of RBG stings because when rights are being trampled, you want to see that those on your side say so with vigor. Ginsburg's support of voting rights will be mirrored by the likes of Sonia Sotomayor in tone for future opinions, but the fact remains that what they write now will matter even less than it did before. Joe Biden may pull off a presidential victory, but consider what all the bigots have won.

An even more business-friendly court

The Supreme Court under Chief Justice John Roberts has been the most business-friendly one since the 1940s. Even today's liberal justices are to the right of previous conservative ones on many questions of corporate regulation. If Trump fills the seat of the late Ruth Bader Ginsberg with another right-wing justice, that tendency will only be strengthened.

The clear aim of the conservative legal movement is to bring back something like Lochner vs. New York, which invented a freedom of contract out of nothing (the idea is mentioned nowhere in the Constitution), and thereby made virtually all pro-worker regulation of business unconstitutional — from restrictions on child labor to minimum wage laws. State regulation on behalf of business owners, naturally, was fine.

Lochner was so extreme that it probably can't come back in full-fledged form — it would mean invalidating the Clean Water Act, the Environmental Protection Agency, and all extant unions, just for starters — but conservative justices will likely aim as close to that as they can. Any non-business owner looking for a fair hearing on wage theft, pollution, union rights, and so forth probably will not get it from America's top court, unless its composition changes.

The premature end of Biden's bipartisan promise

Before Ginsburg's passing, it was possible to imagine that a Biden victory in November could begin to soothe the frayed nerves of the American polity. Almost alone among the 2020 candidates, he resisted polarizing policies and language. He declined to endorse a raft of policies popular with leftists, like Medicare-for-all, decriminalizing illegal border crossing, and abolishing ICE. During the primaries, he took fire from some on the left for saying that the Trump era is an "aberration," and that it would be possible to work across the aisle in the future. His nominating convention offered bouquets to disaffected Republicans, and his acceptance speech was a plea for unity. Biden was thus uniquely poised to heal divisions upon victory and move an exhausted nation away from the bitterness of the Trump years.

If Republicans, heedless of hypocrisy, seize this moment to push through a Supreme Court nominee, they will escalate the polarization in a way that Democratic partisans will be hard pressed not to counter if or when they get the chance. Leading Democrats have threatened that they will pack the court if Republicans seat a justice this close to an election after having denied a hearing to former President Obama's 2016 nominee Merrick Garland.

Absent this latest provocation, it might have been conceivable for Democrats to be gracious in victory — something Biden has hinted he prefers. But when the whole Republican Party is signaling that the norm shattering does not end with Trump, Biden's preferences may not matter. The fat is in the fire.