Supreme Court: How far will the conservative majority go?
“Watch out, America,” said The New York Times in an editorial, the Supreme Court’s new term began this week, and its “newly emboldened conservative majority” seems ready to flex its muscles. After last year’s traumatic confirmation hearings for now–Justice Brett Kavanaugh, the court finished its term fairly quietly, ducking several cases involving “hot button” social issues. But the agenda for the new term reads like an index to our national culture wars, starting this week with oral arguments on the question of whether employees can be fired for being gay or transgender. Also on the docket: gun control, the fate of the 700,000 Dreamers, and yet another bad-faith Republican effort to overturn Obamacare, said Mark Joseph Stern in Slate.com. What else could the court “possibly take on to make this term more incendiary? Ah, yes: abortion.” The justices will also review a Louisiana law that effectively regulates abortion clinics out of existence. The court struck down an almost identical Texas law in 2016, but that was before the arrival of conservatives Neil Gorsuch and Brett Kavanaugh. Liberals should brace for a “jurisprudential bloodbath.”
Maybe not, said Amelia Thomson-DeVeaux in FiveThirtyEight.com. Yes, conservatives finally have the solid, 5-4 majority they’ve been working for since Roe v. Wade, and several justices—most notably Clarence Thomas—have made it clear they are willing, even eager, to overturn liberal precedents. But Chief Justice John Roberts has demonstrated a deep wariness of “jeopardizing the court’s status as a neutral arbiter,” and may resist a too-obvious lurch to the right. Gorsuch might also be “an unlikely swing vote,” said Ian Millhiser in Vox.com. His belief in “textualism”—relying on the written text of a law—may restrain his willingness to join his more activist conservative colleagues. During oral arguments this week, Gorsuch sounded open to the idea that the 1964 Civil Rights Act banning “sex” discrimination should also protect gays, on the grounds that what distinguishes gays is the “sex” of their lovers.
Nonsense, said The Wall Street Journal in an editorial. Congress didn’t intend in 1964 to protect workers on the basis of sexual orientation or gender identification; if new laws are required “as social mores change,” then let Congress write them. Conservatives can count on Roberts in that case and many others, said Aaron Belkin and Sean McElwee in The New York Times. Despite his efforts to portray himself as a moderate, the chief justice has a voting record that’s “among the most partisan of any justice in the modern era.” His “subtle, long-game strategy” is to let liberals notch occasional symbolic victories while he inexorably turns the Supreme Court into an “extension of the Republican Party.”
Remember how we got here, said Jamelle Bouie in The New York Times. Gorsuch is on the court because the GOP blocked President Obama’s nomination of Merrick Garland. Republicans rammed through Kavanaugh’s nomination despite two credible “accusations of sexual assault.” Democrats should play “constitutional hardball” themselves, by increasing the number of justices and “packing the court.” Let’s fix the court instead, said David Edward Burke in WashingtonMonthly.com. Term-limiting justices to 10 years would help. So would “raising the threshold for confirmation to 75 percent of Senate votes,” which would screen out ideologues. The Supreme Court will remain politicized until both parties “care more about protecting our institutions rather than controlling them.” ■