This is a crisis for liberals and everything they believe about American law and government. But for conservatives, it presents both extraordinary opportunity and unusual danger.
There is a path for them to take advantage of the opportunity while avoiding the danger. It will be engineered by the court’s two shrewdest political operators, John G. Roberts Jr. and Brett M. Kavanaugh. It will mean temporarily displeasing many conservatives by holding back on the most controversial cases — especially Roe v. Wade and the lawsuit seeking to nullify the Affordable Care Act. But it could be the only way to hold on to the court supermajority they’re about to acquire.
Let’s begin by considering an order the court issued on Monday, the first day of its new session. The court declines to hear most cases seeking its decisions, usually with no explanation. But sometimes, justices will offer their thinking about such a refusal, as happened in one case concerning Kim Davis, the county clerk in Kentucky who refused to issue marriage licenses to gay couples even after the Supreme Court legalized same-sex marriage in the 2015 case of Obergefell v. Hodges.
While the court declined to hear Davis’s appeal in a lawsuit, Justice Clarence Thomas wrote a passionate statement condemning the Obergefell decision and leaving little doubt he’d like to see it overturned. Justice Samuel A. Alito Jr. joined Thomas in this cry of outrage. But Chief Justice Roberts did not, despite the fact that when Obergefell was decided, Roberts voted with Thomas and Alito in dissent.
What does that tell us? Perhaps the chief justice just thought Thomas’s note was over the top. But more likely, it’s a hint that Roberts has no appetite for revisiting and overturning Obergefell.
That’s not because of his deep respect for precedent, but because he’s smart enough to know that if they actually did so — invalidating the marriages of who knows how many thousands of gay couples — it would be a political nightmare. While Obergefell was controversial at the time, just five years later same-sex marriage is widely accepted (and society hasn’t disintegrated because of it, as some conservatives predicted).
This example shows how even a conservative majority on the court is not going to do everything it might want to do, because enough of its members have the political sense not to go too far on the cases that will grab the biggest headlines.
That includes invalidating the ACA on a case the court will hear just after the election. And it includes overturning Roe v. Wade, which the justices know full well would be a political catastrophe for the GOP.
There’s a scenario that Roberts and Kavanaugh (and perhaps Neil M. Gorsuch and Amy Coney Barrett) have almost certainly considered and would rightly fear. It goes like this: Joe Biden wins the presidency and Democrats take the Senate, and after realizing that Republicans will filibuster anything they try to pass, Senate Democrats eliminate the legislative filibuster. They then pass much of the agenda they ran on: expanding access to health coverage, increasing the minimum wage, strengthening workers’ rights, addressing climate change, and so on.
Then the Supreme Court strikes down every one of these new laws, using whatever gossamer-thin rationale comes to hand. The result is an angry backlash against the court for thwarting the will of the majority party and the voters who elected them. As that backlash reaches a fever pitch, Congress passes, and Biden signs, a bill expanding the court by four seats. Biden quickly fills those seats with young liberal justices, giving liberals a 7-6 majority on the court.
And the conservative dream of remaking American law dies. That is the scenario smarter conservatives will be determined to avoid.
I must stress that this absolutely does not mean that the new 6-3 conservative court will be moderate in any way. It will not. But there are enormously consequential Supreme Court decisions that garner huge media coverage and are widely understood by the public, and then there are enormously consequential decisions that most Americans won’t take notice of or understand. It’s the latter group where the court will do the bulk of its work in moving the law to the right.
Instead of overturning Roe and Obergefell, it will find other ways to chip away at abortion rights and LGBTQ rights, making it all but impossible to get an abortion in much of the country and creating a right for conservative Christians to discriminate against gay people. But the cases it uses to do so won’t garner screaming front-page headlines.
It will probably set about dramatically restricting the scope of the federal government’s powers in ways that make it harder to solve problems. It will continue restricting voting rights, and find ways — like declaring nonpartisan redistricting commissions unconstitutional — that solidify the Republican Party’s ability to hold power while representing a shrinking minority. It will enhance the rights and privileges of corporations at the expense of ordinary people.
While it’s natural that we all focus on the most high-profile cases, that’s precisely why they’re the ones where the court might hold its fire. But don’t think the assault won’t still be underway.
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