Abortion, gun rights, ObamaCare at stake with Supreme Court pick
President Trump is poised to replace the late Justice Ruth Bader Ginsburg, a reliably liberal vote on the Supreme Court, with her ideological opposite: a justice who’s nearly certain to cast conservative votes on disputes over abortion protections, gun rights and ObamaCare.
Ginsburg’s death from cancer on Friday has given Republicans a chance to cement a solid 6-3 conservative majority on the court, which could have both immediate and long-lasting implications for millions of people across the country.
Even relatively stable areas of law — affecting everything from race relations and voting rights to the federal government’s power to issue environmental regulations — could be jarred loose, giving conservative activists an opportunity to roll back liberal gains and further their own legal agenda.
Here are some areas of law that could be upended by a rightward shift on the court.
A 6-3 conservative majority court could be expected to rein in abortion rights. Even with Ginsburg’s vote, the protections that first emerged from the 1973 decision in Roe v. Wade were already on shaky ground.
Earlier this year, in the first major abortion ruling of the Trump era, the court struck down a Louisiana law that imposed strict limits on the procedure. But the ruling underscored the razor-thin voting margin on which a woman’s right to terminate a pregnancy rested, with Chief Justice John Roberts joining the court’s four liberals to form a bare 5-4 majority.
An additional conservative on the court, however, could mean the decisive vote in a future dispute over abortion rights belongs to Justice Brett Kavanaugh, a Trump appointee who dissented in the Louisiana case.
More broadly, a conservative replacement for Ginsburg would push the court’s fulcrum to the right of its current ideological center, Roberts, whose stewardship of the court is viewed by some conservatives with increasing skepticism.
The court is scheduled to hear arguments Nov. 10 in the latest Republican-led challenge to the Affordable Care Act, also known as ObamaCare. In a landmark 2012 decision, Roberts joined the liberals to uphold the 2010 law, which includes protections for those with pre-existing conditions.
The Trump administration has backed more than a dozen GOP states that aim to strike down the law in its entirety, and a conservative replacement on the court would make that more likely. ObamaCare’s fate now hangs in the balance, at a moment when COVID-19 has killed around 200,000 people in the U.S. and the resulting recession has forced millions off their employer-based health insurance plans.
The court’s four more-conservative members — Justices Kavanaugh, Neil Gorsuch, Samuel Alito and Clarence Thomas — have signaled a willingness to revisit the scope of the Second Amendment. Several justices expressed frustration last term when the court declined to issue a major ruling on a challenge to a New York City handgun regulation that put tight limits on a gun owner’s ability to transport firearms outside their home.
Another like-minded conservative justice could increase the likelihood of the court taking up challenges to restrictions on semi-automatic rifles and large capacity magazines. Conservative activists and gun rights groups have also pushed for the court to establish a constitutional right to carry a firearm outside one’s dwelling.
Many conservatives felt betrayed last term when Gorsuch, Trump’s other appointee, wrote a majority opinion that extended workplace antidiscrimination protections to LGBT people. Given that the decision was 6-3, with Gorsuch and Roberts joining the court’s liberal bloc, there’s some reason to think that another conservative on the bench would not fundamentally shift the court’s balance on future disputes over LGBT rights.
But that theory may soon be put to the test. One of the major cases scheduled for the court’s term that begins next month is a dispute that involves the religious rights of a Catholic foster care group that refused to place children in the homes of same-sex couples.
Environmental and other regulations
Conservatives have long sought to scale back the power of federal agencies to issue regulations on everything from the environment to consumer protections. An extreme example of the conservative justices’ distaste for the “administrative state” came last term when Thomas took the unusual step of issuing a dissent that rebuked a decision he had authored 15 years earlier that reinforced the legal doctrine undergirding administrative power.
Another conservative justice could make it more likely that the court tosses the so-called Chevron deference, the legal principle stemming from a 1984 case that instructs courts to defer to interpretations by federal agencies when guidance from Congress is vague.
Trump’s political fortunes
A 6-3 conservative majority could also help Trump politically. The court will hear arguments in its upcoming term over House Democrats’ pursuit of secret grand jury material related to former special counsel Robert Mueller’s probe into Russia’s 2016 election interference and Moscow’s contacts with the Trump campaign.
Another reliably conservative vote on the bench could make it more likely the court blocks the Democratic-led committee’s efforts.
The Hill has removed its comment section, as there are many other forums for readers to participate in the conversation. We invite you to join the discussion on Facebook and Twitter.