A Trump Replacement of RBG is Likely to Devastate Progressive Priorities
By Ian Eppler
In the wake of Justice Ginsburg’s tragic death, President Trump, Senate Majority Leader Mitch McConnell, and nearly all Republicans are racing to ram a Supreme Court nominee through the Senate. They’re doing this because a Trump-nominated replacement for Justice Ginsburg is likely to bring them the reward of their dreams: a young, life-tenured, Republican supermajority on the Supreme Court. This ultraconservative supermajority will thwart progressive governance and entrench Trumpism for generations.
A Republican Supreme Court confirmation in the coming weeks is likely to influence every area of American life, including:
Environmental and Economic Regulation: A 6-3 Republican-dominated Supreme Court will eviscerate existing environmental and economic regulations and block future Democratic attempts to enact new ones. The Court will likely do so by several legal mechanisms, such as:
The so-called “non-delegation doctrine,” a long-dormant pre-New Deal constitutional doctrine which, if interpreted broadly, prohibits Congress from delegating regulatory power to administrative agencies in all but the narrowest circumstances. Most federal regulatory statutes rely on broad delegations of power to administrative agencies, so a revival of the non-delegation doctrine could effectively eliminate the EPA and CFPB and, in the words of Justice Elena Kagan, render “most of Government [] unconstitutional.” Even before Justice Ginsburg died, the 5 Republican Supreme Court justices had expressed interest in reviving the doctrine. With a 6-3 Republican supermajority, those efforts inevitably will accelerate.
The Court is likely to use a broad conception of corporate First Amendment rights to hold that many regulations of business requiring disclosures—disclosures necessary to inform and protect consumers—are unconstitutional compelled speech.
Many bedrock statutes promoting civil rights and preventing discrimination—including the Civil Rights Act—depend on Congress’s constitutional power to regulate interstate commerce. As highlighted in the recent constitutional challenge to the Affordable Care Act’s individual mandate, conservatives have long sought to limit the federal commerce authority. The 6-3 Republican majority is likely to strike down many existing federal laws as exceeding Congress’s power under the Commerce Clause—and could even revisit Warren Court-era decisions upholding the Civil Rights Act as a valid exercise of the commerce authority—and will limit the scope of the Commerce Clause to stifle future progressive policymaking.
Health Care: In California v. Texas, several Republican state attorneys general seek to strike down the entire Affordable Care Act on the ground that the 2017 Republican tax bill silently repealed the ACA when it reduced the individual-mandate tax penalty to $0. The Supreme Court will hear oral argument in this case on November 10, one week after the election. Although the lawsuit has been described as weak by backers of previous challenges to the ACA, three Republican-appointed judges have already ruled in favor of this latest Republican challenge in whole or in part, and a 6-3 Republican-controlled Supreme Court will likely uphold the lower-court decision striking down the ACA. A decision like that would devastate the tens of millions of Americans who rely on the ACA for their health care. It would also produce even broader—and potentially unforeseeable—consequences for a health-care industry that has come to rely on the ACA in the decade since its passage. If a future Democratic trifecta were to restore the ACA—or enact Medicare for All—a 6-3 Republican-dominated Supreme Court might well use results-oriented legal reasoning to strike down the new law.
Reproductive Rights: The constitutional right to an abortion was on shaky ground even before Justice Ginsburg died. While Chief Justice Roberts surprisingly voted to strike down a Louisiana anti-abortion law this past summer in June Medical v. Russo, his separate opinion turned almost exclusively on the Louisiana law’s similarity to a Texas law that the Court had struck down just four years earlier. At the same time, Chief Justice Roberts signaled that he was willing, in a future case, to reconsider the constitutional precedents protecting the right to an abortion. With Justice Ginsburg’s death, even that shaky protection is now gone, and the Court will likely move quickly to eliminate constitutional protection for abortion rights, thus allowing states to jail women who have abortions and doctors who perform them. But it won’t stop there. Conservative legal scholars have begun to argue that the Constitution affirmatively prohibits states from allowing abortion; permitting abortion, the theory goes, unconstitutionally discriminates against the unborn. And these fringe arguments are likely to get a sympathetic hearing from a 6-3 Republican-controlled Supreme Court. In a few years, then, an abortion might be treated as a garden-variety homicide even in states such as New York, Illinois, and California, where large electoral majorities have voted for progressive abortion laws.
Labor Rights: In 2018, the Supreme Court bludgeoned the labor movement in Janus v. AFSCME, essentially imposing a “right to work” law on public-sector unions nationwide. But opponents of organized labor have not stopped there. In follow-up cases brought by conservative dark-money groups, plaintiffs have argued that Janus requires unions to return decades-worth of union dues and agency fees to current and former employees. One Trump judge has already expressed support for this argument, and more are likely to do so in the future. Indeed, the Supreme Court was hostile to labor even before Justices Kennedy and Ginsburg departed, and a 6-3 Republican-controlled Supreme Court is likely to be even more hostile. Soon, this remade Supreme Court likely will require public-sector unions to refund billions in dollars in dues collected over the course of decades—bankrupting nearly all of them.
Gun Safety: It has been widely reported that, even after Justice Kennedy retired in 2018, Chief Justice Roberts has been reluctant to consider Second Amendment challenges to gun-safety regulations. But with Justice Ginsburg gone, the Court’s median vote is now the Chief Justice’s right. As a result, the Court is likely to hear a variety of challenges to gun-safety laws, including required background checks, restrictions on the concealed carry of firearms, and bans on particularly dangerous weapons like AR-15s. Even popular gun-safety regulations enacted by large legislative majorities are likely to be eviscerated by a 6-3 Republican-controlled Supreme Court.
Preventing the Spread of the Coronavirus: Throughout the summer, the Supreme Court regularly upheld, largely on 5-4 votes, state-level public-health orders intended to mitigate the spread of the coronavirus, in the face of challenges from Republican-favored entities such as megachurches. Now, the Court is likely to grant Republican-favored institutions an effective veto over anti-coronavirus measures. Indeed, one Trump-appointed federal judge in Pennsylvania recently blocked a broad array of the state’s public health measures, relying invoking obsolete and discredited precedent and non-binding dissents from Justices Alito and Thomas. On a 6-3 Court, these outlier opinions are likely to become the norm.
These are just a handful of the catastrophic outcomes that a 6-3 Republican-dominated Supreme Court could achieve. There are more: Immigration, voting rights, criminal justice, access to courts, and many other areas of law will suffer as well. Even worse, this Supreme Court supermajority—fully committed to using judicial decisions to advance the Republican Party’s reactionary policy preferences—will survive not for months or years, but for generations. Long after Donald Trump and Mitch McConnell have left the government, this Republican-dominated Court will continue to impose its will no matter who wins elections and by how much. If Democrats wish to govern, they must expand the Supreme Court.
Ian Eppler is an attorney in New York.