For years, the right has treated the Supreme Court as the ultimate consideration when strategizing about presidential and even congressional politics, a prize worth doing anything to seize, whether it’s rallying around candidates whom it has misgivings about or finding repugnant and indefensible procedural maneuvers, such as refusing to consider an appointee simply because he was nominated by a president of the other party.
Democrats, on the other hand, have thought of control of the court as only one goal among many — important, sure, but not much more important than whether we can achieve health-care reform or a higher minimum wage, and certainly not worth setting aside concerns about procedural fairness.
Well, now we’re going to find out exactly why the right was so worked up over the court for so long. It’s about to get the activist conservative majority it has dreamed of, and the result is going to be sweeping changes in American life.
While President Trump plays the appointment of a Supreme Court justice like a reality show, promoting the dramatic reveal of the nominee’s name in tonight’s prime-time special, it almost doesn’t matter which of the contenders is chosen. They were all carefully selected for the president by conservative activists at the Heritage Foundation and the Federalist Society, vetted to ensure that they are devoted to the conservative cause. And when I say “the conservative cause,” I don’t mean just the positions your local Republican congressional candidate might advocate. I mean an expansive, ambitious vision of remaking the entire relationship between Americans and their government.
A lot of the attention in this confirmation, as in many before it, will focus on Roe v. Wade. That isn’t surprising, since Roe is one of the most controversial decisions in American judicial history and presents an unusual case in which members of one party waver between saying explicitly that they want to banish it and pretending that they actually don’t. They do that because they know that around two-thirds of the public (depending on how you ask the question) opposes overturning the decision.
Let’s be clear about this much: Trump promised during the campaign that he’d appoint Supreme Court justices who would vote to overturn Roe, and that’s exactly what he’s going to do. None of the judges from whom he’s selecting his final pick would have been on the list if the Federalist Society were not absolutely, positively sure that they would vote to overturn Roe. As painful as it is to say, it’s already gone. Within a couple of years, abortion will be illegal in multiple conservative states. The court may do it by overturning Roe outright, or they may do it in a slightly roundabout way (perhaps by taking the “undue burden” standard in Planned Parenthood v. Casey and rendering it meaningless by holding that essentially no burden on a woman’s right to choose is undue). But they’re going to do it.
If you’re hoping that Sens. Susan Collins and Lisa Murkowski, the two nominally pro-choice members of the Republican caucus, will step in to ensure that only a nominee who will respect Roe can get confirmed, you might as well stop fooling yourself. Collins and Murkowski will ask the nominee what he’ll do on Roe, and he’ll say that while he can’t take a specific position on any future case, he acknowledges that it’s a very important precedent and precedent must be respected. Then they’ll say that he has put their minds at ease, they’ll vote for him, and he’ll eventually vote to overturn Roe.
But that’s just the beginning. The real prize for the right is something much broader: a sharp restriction on government’s ability to regulate anything. We may be looking at a return to the Lochner era, named for a 1905 case that struck down a New York state law limiting the hours bakers could be forced to work. The court held that the law arbitrarily interfered in a contract between an employer and his employees. Over the next few decades, they would strike down a series of economic regulations.
We could well be embarking on a new version of that era, in which the court’s conservatives undermine the entire structure of the regulatory state’s protection of Americans’ interests. Regulations on health insurance companies, say, to ban people from being denied coverage because of preexisting conditions? Sorry, that’s an infringement on the right of the companies to offer whatever products they want to consumers. Environmental regulations? Nope, that, too, is a restriction on economic freedom. Anti-discrimination laws? We can’t tolerate such a limit on freedom of speech and “religious liberty.” Reasonable measures to limit gun violence? No, the Second Amendment is virtually limitless. Limits on direct contributions to candidates? The court has already made a mockery of campaign finance laws meant to stop corruption, so why not just let billionaires hand politicians briefcases full of cash?
We have no idea how far the new conservative Supreme Court will go, and we know that Chief Justice John G. Roberts Jr. worries about maintaining the court’s legitimacy and reputation. But with no swing vote left, even Roberts — the new median justice, conservative as he is — will no longer have to make any appeal to the sensibilities of someone like Anthony Kennedy. In the past we’ve seen case after case in which a majority opinion was limited by what Kennedy would tolerate, while Clarence Thomas and Samuel A. Alito Jr. would write a concurring opinion making clear that they’d like to go much farther, often in radical ways. At the time it had little practical effect, but now the conservatives will be unleashed.
So after years of treating the Supreme Court like an electoral afterthought, Democrats are now going to learn exactly why it has been so important to the right for so long. All of our lives are going to be affected by this new court, in potentially catastrophic ways. And perhaps the future of the court will take the same place in Democratic politics as it does in Republican politics.