A 6-3 Supreme Court: The Ramifications of a Conservative Super Majority
President Donald Trump and Senate Majority Leader Mitch McConnell have been unwavering in their resolve to fill the Supreme Court seat left vacant by the late Justice Ruth Bader Ginsburg before the Presidential election on November 3. Trump made his intentions clear with his nomination of Judge Amy Coney Barrett. While there are undoubtedly political questions about her nomination, including a profoundly similar situation four years ago that McConnell handled very differently, this circumstance undermines the broader meaning. It has been 50 years since a party has had a reliable supermajority on the Supreme Court. This internal balance has allowed the Court to evolve slowly, without significant structural changes taking place too quickly. Often, it has been a single swing vote that changes the outcome of a case, and this dynamic has handed a relatively equal number of wins to both sides. However, with a 6-3 court, the importance of this swing vote is diminished severely. If a Republican majority in the Senate confirms Judge Barrett, it will fundamentally transform the law in this country for the next half-century.
Prior to Ginsburg’s death, the Court’s ideological makeup was already leaning towards the side of conservatives: Justices Ginsburg, Breyer, Sotomayor, and Kagan made up the liberal bloc, while Justices Thomas, Roberts, Alito, Gorsuch, and Kavanaugh filled out the conservative bloc. The past few years have seen Chief Justice Roberts become one of the most critical swing votes in the history of the Court, particularly on one of the most controversial pieces of legislation in the last decade: Obamacare.
The Court is scheduled to start oral arguments on the Affordable Care Act’s constitutionality later this fall. If struck down, 20 million Americans will lose their health insurance immediately, and the 54 million Americans with a pre-existing condition are at risk of being legally denied coverage. Justice Roberts has voted in favor of Obamacare’s constitutionality, much to the ire of President Trump. However, in a 6-3 conservative majority, the remaining five conservatives would likely overcome Roberts’ vote. Justices Alito and Thomas have been forceful in their dissents of it, and while neither Justice Gorsuch nor Justice Kavanaugh have significantly challenged Obamacare in their time on the Court, it is doubtful President Trump would have appointed them if he did not think they would be opposed to it. As the country awaits the replacement of an iconic liberal justice by a significantly more conservative appointee, doubts are raised over Obamacare’s legal prospects. A 6-3 court could be the nail in the coffin for President Obama’s crowning achievement, and, in the middle of a pandemic, take away healthcare from millions.
We may be on the precipice of a new conservative revolution.
Recent Supreme Court cases on social issues, like same-sex marriage and the strengthening of LGBTQ rights in the workplace, have not gone well for conservatives. They have often lost these cases by just one vote. A new conservative justice would be key in the attempt to reverse these decisions and prove to be the straw that breaks the most contentious of all the Supreme Court precedents: Roe v. Wade. If Judge Barrett is confirmed, it would be the first time in two generations that conservatives would have the votes to overturn the landmark 1973 court case that codified a woman’s right to choose. In the decades following the ruling, conservatives have been on a mission to overturn this precedent, and it is perhaps the most important issue to both sides in choosing a Supreme Court Justice. Despite that Republican Presidents have appointed ten justices to the bench.compared to only four for Democratic Presidents, since Roe v. Wade, it remains in place. In fact, Justices John Paul Stevens, Anthony Kennedy, and David Souter were all chosen by Republicans, yet frequently voted in favor of abortion rights. After Justice Kennedy’s retirement in 2018, there was concern among liberals about whether any of the remaining conservatives would potentially be the new swing vote on this divisive issue. Again, enter Chief Justice Roberts.
For much of his judicial career, John Roberts opposed viewing abortion as an inherent right, asserting that Roe v. Wade was ‘wrongfully decided’ and ‘shouldn’t be overruled’ during a Supreme Court brief for President George H.W. Bush. Earlier this year, it came as quite a surprise when Justice Roberts, along with the four members of the liberal bloc, voted against a Louisiana law that would have made almost all abortion illegal in the state. While many did not see this as Justice Roberts modifying his views as much as applying precedent in a specific case, there was at least some hope among liberals that he may become a moderate on the issue, and potentially be a reliable crossover vote in later cases. However, a shift in Roberts’ position would unlikely represent hope for the fate of abortion rights if Judge Barrett is confirmed. Justices Thomas and Alito have made it clear that they believe abortion should be left up to the states. Kavanaugh has only given an opinion on abortion once in his entire career, and Gorsuch never has. Nonetheless, President Trump, in a 2016 debate, said he predicted Roe would be overturned and that he would put “pro-life justices on the court.” Judge Barrett certainly meets this qualifier, meaning that the right to an abortion is in serious jeopardy for the first time in almost 50 years. The bottom line is this: if Republicans successfully appoint Barrett, we may be on the precipice of a new conservative revolution.