Sloppy, purely partisan arguments are likely to prevail.
Barring a miracle or an asteroid strike, the Supreme Court is likely to have a 6-3 Republican majority very soon.
Sen. Mitt Romney (R-UT) has signaled he intends to back his party’s plan to swiftly confirm a yet-to-be-named replacement for Justice Ruth Bade Ginsburg — and it’s exceedingly unlikely that Democrats can block Trump’s nominee without Romney’s vote.
So the small but significant check Chief Justice John Roberts previously placed on his Republican colleagues will likely soon be gone.
Roberts, frequently the median vote on the current Supreme Court, is very conservative, but he is both less partisan and less aligned with movement conservatism than his fellow Republican justices. He sometimes rejects conservative legal arguments that are poorly reasoned or transparently partisan, or that ask him to move the law to the right faster than he is willing to go.
With a sixth Republican on the Court, however, this limit on Republican power is likely to disappear. Trump spent the past three and a half years filling federal appellate courts with staunch conservatives, often with the guidance of conservative organizations such as the Federalist Society. That gives him a deep bench of potential Supreme Court nominees who are unlikely to disappoint the GOP in the future.
The Court has already moved significantly to the right since it handed down some decisions protecting LGBTQ rights, limiting police surveillance, and preserving most of Obamacare, among many other things. If Trump fills Ginsburg’s seat, those decisions could be in grave danger.
To be sure, there’s always some amount of unpredictability in the Supreme Court. Sometimes, a conservative justice is torn between competing ideological commitments, some of which lead them to form occasional alliances with their liberal colleagues. And it’s always possible that one or more conservative justices could be forced to leave the Court shortly after a Democratic president takes office.
But realistically, unless Democrats trounce Republicans in the upcoming election and win enough congressional seats to pack the Supreme Court with additional justices, Republicans are likely to hold a 6-3 majority on the Supreme Court for a long time. And with six votes, Republicans could afford to have one of those six cast an occasional, futile vote for a liberal outcome.
Roberts is less tolerant than his fellow Republican justices of bad lawyering by conservatives
It’s difficult to predict the full consequences of an additional Republican on the Supreme Court. Many of the differences between Roberts and his fellow Republican justices are less ideological than temperamental. Roberts shares most of the same policy goals as his Court’s right flank, but he is more likely to be turned off by bad lawyering, by transparently partisan arguments, or by calls to flout the Court’s ordinary procedures.
In a Court led by Chief Justice Roberts, Republican lawyers who wanted the Supreme Court to implement Republican policies still had to wrap these requests in somewhat plausible-sounding legal arguments. It’s far from clear that these lawyers will face similar constraints in a 6-3 Republican Court.
The Supreme Court completed its most recent term a little more than a week ago, a term that featured several high-profile — if narrow — losses for conservative causes. Notably, Roberts broke with his fellow Republicans in two cases where conservative advocates presented unusually weak arguments to his Court.
Roberts typically votes to limit abortion rights, and his recent opinion in June Medical Services v. Russo spends several pages criticizing the Court’s decisions protecting those rights. Nevertheless, Roberts reluctantly voted with his four liberal colleagues to strike down a Louisiana law requiring abortion providers to obtain admitting privileges at a nearby hospital — a credential that is very difficult for these doctors to obtain and that does little or nothing to improve health outcomes in abortion clinics.
The reason for Roberts’s vote was simple: The Louisiana law at issue in June Medical was, in all relevant respects, identical to a Texas law the Supreme Court struck down four years earlier in Whole Woman’s Health v. Hellerstedt (2016). “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” Roberts wrote in his June Medical opinion. But he concluded that the principle of stare decisis — the doctrine that courts should generally be bound by their prior decisions — compelled him to strike down Louisiana’s law.
A similar dynamic played out in Department of Homeland Security v. Regents of the University of California, where Roberts joined his four liberal colleagues in holding that the Trump administration didn’t complete the proper paperwork when it decided to terminate the Deferred Action for Childhood Arrivals (DACA) program, which allows nearly 700,000 undocumented immigrants to live and work in the United States.
The striking thing about Regents is the utter pointlessness of the Trump administration’s decision to bring this case all the way to the Supreme Court. If the administration wanted to end DACA, it should have corrected its paperwork error instead of spending years unsuccessfully trying to convince the courts to excuse this error.
In many cases, Roberts’s insistence on legal and procedural regularity will only delay conservative outcomes — Roberts, for example, is still overwhelmingly likely to dismantle the constitutional right to an abortion once abortion opponents bring him a better case. But his formalism also places significant constraints on the Court’s Republican majority, and on the Republican Party’s ability to set policy through litigation.
As Justice Antonin Scalia wrote in 1989:
when, in writing for the majority of the Court, I adopt a general rule, and say, “This is the basis of our decision,” I not only constrain lower courts, I constrain myself as well. If the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle.
Roberts appears somewhat committed to this same principle, that procedural rules and inconvenient precedents cannot simply be tossed aside because they stand in the way of a conservative outcome. The other four Republicans appear far less committed to this principle, given their willingness to cast aside principles like stare decisis in cases like June Medical.
With six Republican justices, Roberts will no longer be the swing vote. So it is likely that a majority of the Supreme Court will ignore many of the constraints that, as Scalia wrote a generation ago, prevent judges from ruling by fiat.
The fate of the 2020 election could be up to Trump’s new appointee
Republicans owe their power to a constitutional system that increasingly allows them to govern even when the voters prefer Democrats.
Americans have a president who received nearly 3 million fewer votes than his Democratic opponent in 2016. In the Senate, because of malapportionment, the Republican “majority” represents 15 million fewer people than the Democratic “minority.” Both of Trump’s justices were nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the nation.
Trump’s new nominee is likely to become the third justice who owes their job to these anti-democratic pathologies in our constitutional system.
That nominee is likely to join a Court that is already fairly hostile to voting rights. And one of their first tasks in their new job could be deciding an array of disputes related to the upcoming presidential election.
Republicans have a $20 million war chest they plan to spend on lawyers seeking to shift this election in the GOP’s favor, and the Biden campaign has its own army of lawyers planning to fight back. Trump’s lawyers are already litigating a wide range of cases seeking to make it harder to vote, from an effort to shut down voting by mail in Nevada to a suit seeking to ban drop boxes for absentee ballots in Pennsylvania.
Meanwhile, the post-election period is likely to feature a blizzard of lawsuits seeking to declare some ballots invalid, or to require states to count other ballots that otherwise would not be counted. And the specter of Bush v. Gore (2000), where five Republican justices halted a ballot recount in Florida and effectively threw the 2000 presidential election to George W. Bush, looms over all American elections.
If the newly reconstituted Supreme Court intervenes in this election on Trump’s behalf, that intervention could take one of two forms. The election could end in a single, closely watched decision like Bush v. Gore. But the Court could just as easily throw the election to Trump by a series of decisions — a few ballots tossed out here; a higher standard for counting absentee ballots there — that have the aggregate effect of changing the result of the presidential election.
America becomes even less democratic in a 6-3 Republican Court
Setting aside the upcoming election, the fairness of future elections is likely to suffer — possibly severely — in a 6-3 Republican Court.
Under Roberts’s leadership, the Supreme Court dismantled much of the Voting Rights Act. It’s neutered most of the nation’s campaign finance laws. And it’s permitted laws that serve no purpose other than voter suppression.
But it can get worse.
“There are already five conservative votes on the Supreme Court to dismantle campaign finance reforms,” according to Ciara Torres-Spelliscy, a law professor at Stetson University and an expert on money in politics. In this sense, Torres-Spelliscy told me, a third Trump justice would only provide a “superfluous sixth vote” for the Court’s decisions undermining these laws.
But there is one area of campaign finance law where the current Supreme Court has stayed its hand: disclosure laws. In Citizens United v. Federal Election Commission (2010), the Court’s landmark decision allowing corporations to spend unlimited sums of money to influence elections, Justice Clarence Thomas argued that his Court should have also tossed out many laws requiring many donors to disclose their donations.
At the time, Thomas was the only justice who took this position, but the Court has changed significantly in the decade since Citizens United was handed down. Justice Neil Gorsuch frequently provides a second vote for Thomas’s most radical opinions.
Similarly, as an aide to then-President George W. Bush, Justice Brett Kavanaugh wrote in a 2002 email that there are “constitutional problems” with laws imposing limits on how much donors can give directly to candidates — one of the few campaign finance laws left untouched by decisions like Citizens United. That suggests Kavanaugh could join Thomas in striking down more campaign finance laws.
And then there’s Justice Samuel Alito. Though Alito did not join Thomas’s opinion in Citizens United, he is arguably the most reliable Republican partisan on the Supreme Court. As Adam Feldman, a lawyer and political scientist who runs the website Empirical SCOTUS, told me, Alito “is the sole conservative justice on the Court not to join the liberals in a 5-4 decision” — meaning that he has never once cast the deciding vote for a liberal outcome. (The one plausible exception to this trend is Alito’s brief opinion in Gundy v. United States (2019). But, in Gundy, Alito endorsed a conservative deregulatory project that is rejected by all four of the Court’s liberals.)
It is unlikely, in other words, that Alito would cast a liberal vote in a campaign finance case if four other justices already support a conservative outcome.
A third Trump justice could also erect new barriers before the right to vote. Although the Roberts Court has already dismantled much of the Voting Rights Act, the primary law preventing racial voter discrimination, it has thus far left in place the law’s “results test,” which prohibits any law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
Thus, while the Act is much weaker than it was just a decade ago, it still retains some vibrancy. Many state laws that disenfranchise voters of color remain illegal.
But Roberts is a longtime opponent of this safeguard against racism in elections. According to the voting rights journalist Ari Berman, Roberts was the Reagan Justice Department’s point person in a failed effort to scuttle the results test. As a young lawyer, Roberts “wrote upwards of 25 memos opposing” such a test, according to Berman.
Roberts may have the votes right now to effectively dismantle what remains of the Voting Rights Act. The Supreme Court has not heard a major Voting Rights Act case since the relatively moderate Justice Anthony Kennedy was replaced by the hardline conservative Kavanaugh, so we don’t know how far the current Court is willing to go in dismantling what remains of the Voting Rights Act.
At the very least, however, every Republican added to the Supreme Court increases the likelihood that the remainder of the Voting Rights Act will fall.
20 million Americans could lose health coverage in the pandemic
Chief Justice Roberts famously broke with his fellow Republicans in NFIB v. Sebelius (2012), a decision upholding most of the Affordable Care Act. Three years later, in King v. Burwell (2015), Roberts and Justice Anthony Kennedy broke with their fellow Republicans again to reject a new attack on Obamacare.
But Kennedy is no longer on the Court. Without Ginsburg, it’s far from clear that there are still five votes to preserve the landmark legislation that provides health coverage to approximately 20 million people.
And, with a third Trump justice on the Court, Obamacare could fall quite rapidly. The Supreme Court plans to hear oral arguments in California v. Texas, the latest case seeking to repeal Obamacare by judicial decree, in the fall.
The plaintiffs’ arguments in Texas are, frankly, outlandish. They rest on the assumption that, when Congress repealed a single provision of the Affordable Care Act in 2017, that requires the courts to dismantle the entire law. But the fact that these arguments are widely viewed as ridiculous — even by many conservative legal scholars — won’t necessarily deter most of the Supreme Court’s Republicans from voting to strike down Obamacare.
On the eve of oral arguments in NFIB, the first Obamacare decision, the plaintiffs’ arguments in that case were also widely viewed as misguided. An American Bar Association poll of Supreme Court experts found that 85 percent believed the Affordable Care Act would be upheld, and another 9 percent believed the Court would dismiss the case for lack of jurisdiction.
That didn’t prevent four justices from voting to repeal the entire law. And, with another Trump justice on the Supreme Court, that four could become five.
LGBTQ Americans could be stripped of their constitutional rights
The Supreme Court’s recent decision in Bostock v. Clayton County, which held that federal civil rights law prohibits workplace discrimination against LGBTQ workers, is probably safe. That decision was 6-3, with both Roberts and Gorsuch voting with the majority.
But the Court’s constitutional decisions protecting LGBTQ rights stand on far more precarious ground. Obergefell v. Hodges (2015), the Supreme Court’s landmark decision establishing that same-sex couples enjoy the same marriage rights as opposite-sex couples, was a 5-4 decision with Kennedy in the majority.
Lawrence v. Texas (2003), which placed strict limits on the government’s ability to prohibit sexual activity between consenting adults, and Romer v. Evans (1996), which held that the government may not pass laws solely to express “animus” against gay people, were both 6-3 decisions with Justice Sandra Day O’Connor and Kennedy in the majority.
O’Connor and Kennedy were replaced with hardline conservatives.
It’s possible, in other words, that all three of these decisions could fall even if Trump’s nominee is not confirmed — although, for that to happen, a state would likely have to pass a law that violates Obergefell, Lawrence, or Romer to test whether the Supreme Court would strike that law down. With a third Trump justice, it is even less clear that the Court’s new majority will value stare decisis more than it values a conservative approach to LGBTQ rights.
It’s also possible that the Court could leave decisions like Obergefell nominally in place, but allow states to deny many rights to LGBTQ Americans. The Court, according to Shannon Minter, legal director of the National Center for Lesbian Rights, “might permit states to undermine Obergefell by treating married same-sex couples differently in some ways — for example, by permitting states to favor straight couples in adoption or family benefits or even in the definition of who is a legal parent.”
Minter’s view was echoed by Josh Block, a lawyer with the ACLU’s LGBT and HIV Project. While Block said he does not think a newly constituted Court “would vote to overrule Obergefell completely and allow states to ban marriage outright,” he fears the Court’s new majority “could allow states to treat those marriages differently.”
Indeed, that’s more or less the approach that Gorsuch took in Pavan v. Smith (2017). Obergefell held that the Constitution protects same-sex couples’ right to marry “on the same terms and conditions as opposite-sex couples.” In Pavan, a majority of the Supreme Court struck down an Arkansas law that treated married same-sex couples differently than married opposite-sex couples with respect to which names appear on a birth certificate.
Gorsuch dissented, in an opinion joined by Thomas and Alito. His opinion suggested that states may be able to discriminate against same-sex couples so long as they argue that “rational reasons exist” for the discrimination.
The EPA could become a hollow husk
As a general rule, Congress may legislate in two different ways. The simplest way is to enact a law commanding certain individuals or businesses to behave in a certain way. Thus, for example, if Congress wishes to limit pollution, it can pass a law commanding power plants to install a particular device that reduces emissions.
But Congress may also lay down a broad policy and instruct a federal agency to issue relatively easily updatable regulations implementing that policy. The Clean Air Act, for example, provides that certain power plants must use “the best system of emission reduction” that currently exists, while also taking into account factors such as cost. It also gives the Environmental Protection Agency (EPA) the power to issue binding regulations instructing energy companies on which systems they must use to limit emissions.
That way, the regulations can adapt as technology evolves. Congress still sets the overarching policy — the impacted power plants must use the “best system of emission reduction” — but the EPA determines what that “best system” is at any given moment in time.
In Gundy v. United States (2019), however, Gorsuch called for vague new limits on Congress’s power to delegate regulatory power to agencies. And, while Gorsuch’s opinion in Gundy was technically a dissent, all five members of the Supreme Court’s current Republican majority have since signaled they are supportive of Gorsuch’s approach.
Existing precedents typically require courts to defer to Congress’s decision to delegate regulatory power to an agency. Gorsuch would replace these precedents with a new standard providing that a federal law permitting agencies to regulate must be “‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”
Under Gorsuch’s approach, judges — and ultimately, Supreme Court justices — would get to decide which federal laws delegating power to an agency are “sufficiently definite and precise,” and which ones should be struck down.
So it will matter a great deal who sits on the Supreme Court. In a post-Gundy world, courts will have far more power to make discretionary calls about which regulations they wish to uphold and which ones they wish to strike down. That means that a more conservative Court will tend to strike down more regulations favored by Democrats.
Police could gain far more power to engage in surveillance
The current Supreme Court is arguably more friendly to criminal defendants than it was 20 years ago. For many years, the Court was dominated by conservatives incubated in the “tough on crime” rhetoric preferred by presidents like Richard Nixon and Ronald Reagan. The current Court, by contrast, is more likely to see criminal justice cases through a libertarian lens.
A big reason for this libertarian turn is that individual conservative justices hold defendant-friendly views on certain criminal justice issues. Roberts often votes with his liberal colleagues in cases where police use new technology to conduct intrusive searches. Gorsuch wrote the lead opinion in a case holding that criminal defendants may only be convicted by a unanimous jury. Kavanaugh is a long-standing opponent of racial jury discrimination.
While it’s important that justices like Gorsuch and Kavanaugh sometimes take a broad view of the rights of criminal defendants at trial, Roberts’s support for limits on police conduct is likely to prove more consequential — because the overwhelming majority of criminal suspects never receive a trial to determine their guilt.
“97 percent of federal cases and 94 percent of state cases end in plea bargains, with defendants pleading guilty in exchange for a lesser sentence,” according to a 2012 analysis by the New York Times. So Supreme Court decisions protecting trial rights only impact a small minority of defendants.
The gap between Roberts and his fellow Republicans was most on display in Carpenter v. United States (2018), where Roberts voted with his four liberal colleagues and held that police “must generally obtain a warrant supported by probable cause” before obtaining cellphone records that can be used to track an individual’s movement.
Carpenter was a significant case because, as Justice Kennedy wrote in dissent, the Court has typically held that “individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party.”
But Roberts recognized that, as police gain more and more technologically sophisticated methods of tracking criminal suspects, the Constitution must recognize new limits on these methods. It’s one thing to say that police can track every number dialed on a particular phone, but it’s another thing altogether to say that police can turn each individual’s cellphone into a homing device that monitors their every move.
If Roberts is no longer the swing vote, Carpenter could potentially fall. At the very least, the Court is likely to grow less skeptical of police overreach and less fearful of the awesome surveillance power given to police by new technology.
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Author: Ian Millhiser
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