Justice Ruth Bader Ginsburg’s recent statement that “sharp divisions” will exist in the Supreme Court’s upcoming major decisions this month suggests a rough ending to the term for the court’s liberal wing. But as bitter as these losses might be, could something even more dramatic be on the horizon at the court?
All but the oldest Americans have lived their entire adult lives under a Supreme Court associated with progressive social change: Brown v. Board of Education, “one person, one vote,” Roe v. Wade and historic victories on equal rights for women and marriage equality — all landmark cases on a path toward a better country. Even in recent years, when the court has been less protective of individual rights and has chipped away at prior protections, advocates have clung to the hope that the Supreme Court might intervene whenever the nation’s conscience and laws need a jolt in a progressive direction.
No more. We need to prepare for a complete reversal of the role the court plays in our public life. That change could be dramatic, its impact sweeping and — perhaps most surprisingly for those who believe change at the Supreme Court is always slow — it could come head-spinningly fast.
Last month, the new conservative majority — being driven by Justices Neil Gorsuch and Brett Kavanaugh — signaled that this change is coming. In overruling a 40-year-old precedent governing how state governments can be sued, the new court majority — all of whom pledged reverence for precedent during their Senate confirmation hearings — sang a different tune: “stare decisis is ‘not an inexorable command’ . . . and is ‘at its weakest’ when interpreting the Constitution.” This was the second time in less than a year that the conservative majority has tossed aside decades-old precedent.
The decision led Justice Steven Breyer to ask “which cases will the court overrule next?”
Justice Breyer, your colleagues almost certainly have a list.
Most prominent is Roe v. Wade. Many court watchers have predicted that while abortion rights would be constrained by the court, it would not go so far as to overrule Roe. That may have been naive. The abortion bans now cropping up in states throughout the country could put the continuing validity of Roe squarely before the court. and even if it postpones a ruling till after the 2020 election, the move could come quickly after. Perhaps more dramatically, once Roe goes, anti-abortion forces will likely be unwilling to leave abortion policy up to the states. Next up could be cases before the Supreme Court seeking to impose nationwide restrictions on abortion — even in pro-choice states — in the name of “fetal rights.”
The reversal won’t stop with abortion. Consider affirmative action. Justice Anthony Kennedy was the fifth vote to uphold a variety of affirmative action programs as recently as 2016. With new challenges to affirmative action now working their way through lower courts, including a high-profile case concerning affirmative action at Harvard, it will not be long before these programs have a reckoning before a hostile Gorsuch-Kavanaugh court. Decades of work to remedy entrenched discrimination could be wiped out, and race-conscious programs in employment and admissions that are now pervasive could be forbidden.
Also consider gerrymandering. In the three decades since the court first indicated that it might act to check such abuses, advocates have tried again and again to get the court to put limits on the practice, including as recently as this spring. But the court might not only refuse to intervene to end this practice, it might also reverse an earlier 5-to-4 decision that allowed reform-minded states to adopt nonpartisan commissions to check gerrymanders. Hope that the court might fix our broken redistricting process could vanish.
The past decade has seen a conservative court slow further social progress, but the next decade could feature a radical-right court that would not only narrow past gains but also erect barriers to prevent progressive political action. It would be a 180-degree turn from judicial consideration of abortion rights, civil rights and political reform to judicial prohibition against legislative action to advance these aims.
In 2016, voters who said the Supreme Court was the most important issue in the election voted nearly 3 to 2 for Trump. Will progressive voters, who have not been so attuned to the courts as conservatives have been, rouse themselves in time to prevent the court’s further drift in that direction? Or is it already too late?
Are we ready for a constitutional order in which the Supreme Court no longer stands for equality and progress — or no longer is merely indifferent to those aims, as it has been more recently — but becomes a bulwark of retrogression and reversal? That was the Supreme Court of 100 years ago, and it could be back sooner than any of us ever believed.