President Trump’s third candidate for the Supreme Court is Amy Coney Barrett. The nomination process is proceeding at warp speed, and the court is even closer to a Conservative majority of 6-3.
The historical character of this nomination is very clear. If Barrett is upheld, the Supreme Court could be the most conservative in 70 years. But what does that mean for the way judges will rule in the future?
Once on the bench, it is difficult to predict how a candidate will rule. We know, however, that the chances of a “conservative revolution” in the field are high. It’s not just that the liberals are losing an important justice or that the conservative balance of power is about to tumble to the right. The fact is that the types of cases the court will hear will also change dramatically.
Ultimately, we don’t know whether the conservative majority will rush to knock down or undermine longstanding liberal precedents like Roe v. Calf. However, Supreme Court experts have insisted that we will likely see this the legally conservative movement Seize this moment, and as such, we should prepare for a wave of decisions that will move the law fundamentally to the right – from cultural issues like gun rights and abortion to more legalistic yet important issues like executive power.
And for the first time in decades, there won’t be a single swing justice with the power to make a controversial decision one way or another. Rather than having Chief Justice John Roberts single-handedly deciding how the court should proceed on a particular decision, two conservative judges must prevent the court from making a hard right turn on a particular matter. And at this point it is not clear who this second conservative justice might be.
The liberals have lost their most powerful dissident
The most immediate impact of Justice Ruth Bader Ginsburg’s death is that the liberal wing of the court has lost a seat and the left-wing judges of the court who have tried to exercise their power for the past 10 years as a minority blocare now in an even weaker position. But Ginsburg also had a strong legal voice and a long history as an advocate for gender equalityto transform this area of law significantly.
And among the four democratically appointed judges Ginsburg, who has been on the pitch together since 2010, has been one of the most trusted and prominent liberal voices. By then, she was already a seasoned Supreme Court veteran and had established herself as a solid liberal voice, especially on cases involving civil rights, trade unions and the rights of defendants.
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But she became a liberal superstar in the last decade of her life for another reason: her dissent. Ginsburgs dissenting opinion in Shelby County against Holderin which she wrote that the decision was made by five GOP-appointed judges invalidate an important section of the 1965 Voting Rights Act was like “throwing your umbrella away in a rainstorm because you won’t get wet” earned her the nickname Notorious RBG and with it a place on tote bags and coffee mugs in liberal homes across the country.
This reputation as a passionate dissident was well deserved: at the time of her death, Ginsburg had the highest rate of dissent in narrow Supreme Court cases since Thurgood Marshall. While it is a sign of how conservative and polarized the court has already become, it is not that far ahead of the other liberal judges still in court.
The symbolic power of Ginsburg’s dissidents served loudly Lee Epstein, a political scientist at Washington University in St. Louis studying the Supreme Court. “Their dissidents may have forced the majority to think about their decision and respond to their dissidents,” said Epstein. More importantly, however, they have drawn attention to the majority’s decision and set a marker for a different outcome – either by a future court or by Congress.
One of the most violent dissent in Ginsburg was in 2007 when There was an all-male majority of five judicial officers that Lilly Ledbetter, an employee of the Goodyear Tire & Rubber Company, could not sue the company for gender pay discrimination for 19 years because she filed her lawsuit more than 180 days after the initial discrimination. Ginsburg gave her dissent out loud from the bankShe accused her colleagues of either ignoring or failing to understand the “insidious” nature of wage discrimination and called on Congress to act. It worked. Two years later Congress passed the Lilly Ledbetter Fair Pay Act of 2009which changed the statute of limitations to allow fair pay cases to be filed within 180 days of the last discriminatory paycheck.
“Dissent can be a powerful thing, especially when you’re in the minority for a long time like Ginsburg was,” said Epstein. “It was her way of defending left-wing justice systems in a very conservative Republican court.”
With Ginsburg’s death, the other liberal judges – especially Sonia Sotomayor, the left-wing judiciary at court – might feel the need to take on the role of dissident.
The conservative wing will no longer need Roberts
Ginsburg’s death also means an enormous loss of power for Roberts. For the first time in decades, there will be no swing justice that can decide whether the liberals or conservatives will prevail in narrow cases. According to our analysis earlier this year, Justice Brett Kavanaugh is likely to be the new median on the court, assuming the new justice falls to his right, and that means the center of gravity within the Conservative wing will shift dramatically – especially if the new one Justice is ideologically closer to Samuel Alito and Clarence Thomas, the two most right-wing judges in the court.
One way to think about what the court might look like is to reconsider some of the recent 5-4 rulings in which Roberts cast a pivotal vote with the Liberals – rulings presumably going the other way with Kavanaugh as the new median would have gone. Just in the last term in office, Roberts joined the Liberals in one high profile abortion case Roberts wrote in his concurring statement earlier this summer that he still believes the 2016 case was wrongly decided, but at the same time said that it wasn’t ready to reverse the precedent. The other four Conservatives, on the other hand, were perfectly prepared to rethink fundamental aspects of the court’s approach to abortion rights.
Tom ClarkThe political scientist at Emory University said that with every new Trump candidate on the court, he expects the Conservatives to quickly allow a much wider range of restrictions on abortion. But he warned that even with a sixth interlocutor in court he was unsure whether the Supreme Court would go so far as to say, “We cast out the principle that you have the right to have an abortion,” adding: “[T]That would be an extremely radical step. “However, he believes the court will allow Republican-controlled states to undermine access to abortion much faster than Roberts was willing to tolerate.
If Trump wins a second term, his administration will also be free from a major roadblock in Roberts. Last year and this year, Roberts joined the Liberals on two incidents involving key actions by the Trump administration – trying to add a citizenship issue to the 2020 census and trying to overturn the deferred action on child arrivals , the Obama-era program that grants certain young people temporary permits to undocumented immigrants to legally stay in the country. Roberts wrote the majority opinion in both cases, drawing on similar considerations, arguing that while the Trump administration might have the power to add an additional question to the census or to repeal a previous president’s executive order, it did not follow the laws of executive agencies . The other Conservatives didn’t see this as a violation of the law, however – which means Trump politics may have an even friendlier audience at the Supreme Court going forward.
It’s possible, of course, for Roberts to continue his moderation campaign and try to convince one of the Conservatives to join him and the Liberals in cases where he believes his GOP colleagues are going too far. Kavanaugh and Justice Neil Gorsuch are both possible candidates for this type of defect – specifically Gorsuch, who voted with Roberts and the Liberals this year in a case that discriminated against homosexual and transgender workers in the workplace.
But these coalitions may be more difficult for Roberts to forge, especially as his interests may be more aligned with the moderate liberals than with some of his conservative counterparts. That year, for example, he voted with Kagan about as often as he did with Alito, more often with Kagan than with Thomas, and about as often with Breyer as he did with Thomas.
However, Roberts retains a great, important power. As chief judge, he can assign who writes the opinion in any case when he is in the majority. However, this could lead to a change in strategy for him. Rather than trying to bridge the left and right gap, Roberts could be on the side of his conservative peers more often, as this would allow him to speak out in cases where he wants to rule as closely as possible.
Precedents could be in much greater danger
Even before Ginsburg’s death, the Roberts Court overturned precedents by a tighter 5-4 majorities than any other modern court in Supreme Court history – and those decisions usually went in a conservative direction.
Well that seems to be accelerating. And not just because the conservative majority could be open to overturning precedents. Lower courts, attorneys, and state lawmakers calibrate their actions, at least in part, by how far they believe the Supreme Court is ready to go.
Some lawyers against abortionFor example, so far we have deliberately chosen a more incremental strategy, also because they considered it unrealistic that the Supreme Court Roe v. Wade would fall for good. “That kind of incrementalist thinking will be out the window,” said Leah Litman, a law professor at the University of Michigan.
In the meantime, the Supreme Court is largely reacting to the arguments put on its doorstep, and at least one study has found that the Judges are more likely to break precedents if expressly requested to do so.
This kind of outside-of-court pressures is difficult to measure and quantify – after all, there is no way of knowing what laws or cases would land in the Supreme Court if Ginsburg were not replaced, most likely by a Conservative. Still, it’s important to understand. Because even before Ginsburg’s death, there was evidence that Trump’s previous nominations had encouraged conservative advocates to challenge precedents that previously seemed sacrosanct, like a case on the term, the ask the court to reconsider a 1990 ruling on religious exemptions written by former judge Antonin Scalia made many Conservatives are looking at now how flawed because it allowed the government to impose some restrictions on religious practices.
However, we might be surprised where the court is going next or where cracks appear among the GOP appointed judges. The legal landscape is set to change dramatically, so some in the conservative right-wing movement may seek to prioritize certain issues and move forward quickly while others disagree.
After all, all Trump nominees could turn out to be wildcards, at least temporarily – even Barrett. “The conservative right-wing movement may go out of their way to bring a specific person to justice, but once that person is there they can do what they want and the Federal Society cannot fire them,” Epstein said. “So we just have to see what happens. If the center of the court moves to the right, then the judges will feel,” You know what, nothing is stopping us, we’re going to plow forward “? That could very well happen. But you could also be a little careful. “