How Bad Will Things Become? Part Two: The Court’s New Extremist Majority Will Be Truly Radical

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Posted in: Constitutional Law

Were it not for the release of teasers for Bob Woodward’s new book about the terrifying levels of dysfunction in Donald Trump’s White House, the Senate hearings on Trump’s Supreme Court nominee would have completely dominated the news this week. But even with the Woodward story stealing most of the show, Brett Kavanaugh’s hearing has made some news.

Unfortunately, the news is essentially that Republicans—who, as one commentator recently put it, “don’t just want to win—they want to rig the game”—are not backing off of their refusals to provide adequate information or time to assess the nominee. Meanwhile, the media’s coverage has essentially been limited to dramatic scenes of protesters being arrested, along with content-free knowing comments about the performances of the various presumed Democratic presidential candidates who are on the committee.

Kavanaugh, meanwhile, has refused to answer “hypotheticals” about any and every important question, such that he is now simply saying, “I know that I’ve got the votes, so I’m perfectly happy to sit here and let you waste your time.” Senator Susan Collins will “tend to her image” by pretending to be a thoughtful moderate, but she will again fall in line with her party, even though Kavanaugh ought to make all but the most conservative fringe of his party uncomfortable.

The betting odds, then, continue to be that Kavanaugh will soon join the Court, replacing Anthony Kennedy’s almost-always-reliable hard conservative vote with an always-solid hyper-conservative vote.

If that happens, how far could the new Roberts Court go? From the perspective of anyone but a movement conservative, how bad could things become? In the first column in this series, “How Bad Will Things Become? Part 1,” which I published on Dorf on Law shortly after Kavanaugh’s nomination this summer, I focused only on the issue of reproductive rights, pointing out that it was not merely a question of whether Roe v. Wade will be repealed (with abortion still possibly legal on a state-by-state basis) but whether the Court would invent a doctrine under which abortion would be constitutionally prohibited nationwide.

Beyond abortion, I asked whether even Griswold v. Connecticut, Roe’s precursor that identified a constitutional right to privacy that prevented states from banning contraception, will also be overturned. Other than concerns about possible negative public responses, which I will discuss below, there is every reason to think the Court’s five conservatives would want to go back to those days.

This column, Part 2 of this series, expands the question of how bad it could become in other areas of the law. I am not limiting myself to thinking about things that are most likely to happen, but instead to considering a variety of ways in which a Kavanaugh-not-Kennedy Court could radically change America for decades to come, and how it might do so.

The Most Salient Areas in Which Kavanaugh Would Move the Court (and the World) Backward

A New York Times piece earlier this week suggested that “a solid five-member conservative majority … would most likely restrict access to abortion, limit the use of race-conscious decisions in areas like college admissions, uphold voting restrictions, expand gun rights, strike down campaign finance regulations and give religion a greater role in public life.”

That is an impressively broad sweep of hot-button issues, and Kavanaugh would certainly not hesitate to reverse Kennedy’s vote on some issues while pushing in an even more conservative direction on others.

I recently found myself unexpectedly disagreeing with Linda Greenhouse, the Court watcher on The New York Times’s op-ed page, when she criticized an advocacy group’s televised spot opposing Kavanaugh. That advertisement included assertions that “Brett Kavanaugh on the Supreme Court endangers protections for people with pre-existing health conditions,” “puts a woman’s right to choose gravely at risk,” and “threatens to continue selling out America to powerful corporate interests.”

Greenhouse responded: “While the second of those three claims is, based on what we know, a pretty sure bet, the first and third strike me as barely a step up from fearmongering.” But why? What is it about Kavanaugh that would make one have any doubt that he would rule against the Affordable Care Act (which protects coverage of preexisting conditions, and which a group of Republican-led states is currently challenging in a suit that could soon reach the Supreme Court)? He might not frame it as a vote to end such protections, but he would still vote to end them.

Similarly, why is it fear-mongering to predict that Kavanaugh would rule in favor of business interests at every turn? Even Kennedy joined in the Court’s push to make it nearly impossible to sue businesses, agreeing to limit class actions and blessing forced arbitration clauses, to say nothing of the Court’s anti-union Janus decision earlier this summer. Kavanaugh is not going to be at least that friendly to corporations?

The point here is that we already know that the Court’s doctrines regarding voting rights, campaign finance, affirmative action, and so on are all likely to change substantially in the near future. Republicans stole a Supreme Court seat to enact their agenda, and Kavanaugh’s tag-teaming with Neil Gorsuch and the other extreme conservatives will guarantee that the small subset of Kennedy’s legacy that non-conservatives admired will be expeditiously erased. The only question is how that will happen, and what will replace it.

Are There Constraints on a Conservative Bloc That Can Otherwise Do Whatever It Wants?

Even people who have the power to do unpopular things might sometimes hesitate to exercise such power. Will the newly empowered Unfabulous Five decide that they need to trim their sails? And even if they do not, can something else stop them?

My Verdict colleague Michael Dorf recently addressed one aspect of the latter question, suggesting that there is a small but nontrivial amount of work that state supreme courts can undertake that would slow the US Supreme Court’s upcoming roll. But because of supremacy issues and the basic federal structure, he concludes that that will be weak tea indeed.

On the question of self-restraint, there are two categories of issues that might worry the Unfab Five. One is the political blowback from its decisions, such as the possibility that Democrats could make great gains at the polls if, say, the Court reverses Roe. The second is that the conservatives might worry about the unintended consequences of their own decisions.

In that second category, for example, one might include the warnings prior to the Janus decision that, as a Washington Post piece put it, “If the Supreme Court rules against unions, conservatives won’t like what happens next.” Why not? The author warned that an anti-union decision could unintentionally “grant[] a heretofore denied constitutional right to collective bargaining and transform[] thousands of workplace disputes into constitutional controversies,” and that if the current “no-strike clause[s] in most union contracts … disappear, employers will have chaos and discord on their hands.”

We now know, of course, that even the pre-Kavanaugh conservative bloc was not worried enough about those consequences to deny themselves the chance to take another whack at organized labor. Maybe other issues in future cases will present more immediate concerns about unintended consequences, but my suspicion is that the right-wing justices are confident in their abilities to craft opinions that achieve their goals while avoiding unwanted outcomes.

At most, such concerns are likely to slow down the assault on the Constitution, which is at least something. It is not, however, likely to change the goals.

What about concerns regarding political responses to hard-right jurisprudence? One can fold into this issue the suggestions that Chief Justice Roberts will be a moderating force as a matter of institutional legitimacy, because the idea in any case is that the Court’s majority might hold themselves back in order to prevent an extra-judicial result that they wish to avoid.

Again, one cannot say categorically that this would never happen. But also again, the most likely result of any such concerns is that the new line of cases would involve even more dishonesty than the Court’s conservatives have otherwise ladled out. As some observers have suggested, for example, Roberts et al. might continue to issue rulings that amount to reversals of precedent without calling them reversals.

The most widely discussed example of this would be for the Court not to overrule Roe explicitly (because that would energize even some otherwise conservative voters) but instead to decide that there simply are no abortion restrictions that constitute an “undue burden.” Expanding loopholes and narrowing earlier cases to their facts can be as good as overturning an earlier Supreme Court decision, with the added advantage of being much less politically provocative.

Most importantly, American conservatives have shown that they have a strong tendency to, as Janis Joplin once sang, “get it while you can.” Political opportunities come along only so often, and one never knows what might happen later, so restraint is not the name of the conservative game.

For example, I described during the 2016 campaign how Republicans could have all but guaranteed themselves large and durable majorities in both houses of Congress if they had taken one of the many opportunities to abandon Donald Trump during the general election campaign. I noted that this would have put them in the driver’s seat against President Hillary Clinton, constraining her to “repay their bipartisanship” by nominating someone even more center-right than Merrick Garland to the Court and essentially neutering her even before she took office. (They probably could have extracted a regressive tax cut, too.)

We know, of course, that even the manifest impending disaster of a Trump presidency could not motivate the Republicans to trade some immediate-term gratification for some short-, medium-, and long-term gains. I cannot imagine that the five men who were installed on the Court by those same Republicans would be any more likely to be modest in their ambitions, once they have the votes in place. Again, the most that this could do is slow them down a bit.

Legal Realism’s Most Unfortunate Validation

If the Unfab Five will not be slowed (very much) by state supreme courts, by worries about unintended consequences, or by worries about political reactions, what about the simple restriction of having to work under the United States Constitution?

That question is, oddly enough, both serious and laughable. It is serious in the sense that we should want it to be simply a rhetorical question: The new conservative majority will obviously have to limit itself to what is possible under the Constitution, right? Yet the question is also giggle-inducing precisely because we know that the answer is obviously a resounding no.

How can I be so cynical? Consider the track record of the Court’s conservatives even when Kennedy was on the Court. Bush v. Gore was so absurd that Antonin Scalia would respond to questions about the case by yelling, “Get over it!” The one-use-only language of the per curiam opinion fairly advertised itself as an anti-constitutional fraud, twisting the Equal Protection Clause beyond any previously known meaning.

Or how about the Court’s recent Second Amendment cases? The current generation of conservatives decided that the amendment’s preamble simply means nothing, overturning decades of precedent to legitimize a view that former Chief Justice Warren Burger once called a “fraud, I repeat the word ‘fraud,’ on the American public.”

Shelby County v. Holder, in which the Court’s conservatives eviscerated the Voting Rights Act, was framed as a recognition that America has changed in the half-century since that Act was passed, even though a Republican-led Congress had issued—only a few years before Shelby County was decided—findings supporting the continued need for federal oversight of elections to prevent the suppression of African-American votes.

The first attack on the Affordable Care Act, NFIB v. Sebelius, featured the Court’s conservatives inventing an action/inaction distinction that required all but one of them to simply ignore the import of their own prior jurisprudence. To what end? The Constitution’s Commerce Clause is now no longer available to justify federal actions that it might otherwise have allowed. Roberts’s vote to save the ACA on the grounds of the taxing power does not change the reality that five justices agreed that the Commerce Clause does not mean what it used to mean.

There are more examples (Citizens United, anyone?), but you get the idea. Even people who applaud the outcomes of one or more of those cases would have to admit that the Court’s right-wing bloc had to move significant distances in order to reach the result that it wanted. And even if one accuses liberal justices of doing the same thing—a claim that is, at the very most, arguably true in kind but not at all in degree—that does not change the legal realist conclusion: the Unfab Five will easily be able to find a way to write any opinions that they want to write, maintaining at the least the veneer of serious jurisprudence while doing so.

The title of this column asked the question: “How Bad Will Things Become?” The answer is: “As bad as conservatives want them to be.” In my next installment in this series, scheduled for next Tuesday back on Dorf on Law, I will discuss some of the specific, but not widely known, moves that the Unfab Five might have in store for us.