With Judge Amy Coney Barrett now formally in the pipeline — if President Trump and Senate Republicans push ahead, the public be damned, she could replace Ruth Bader Ginsburg as soon as next month — the disconnect between the nation’s highest judicial panel and the people who live with its rulings is starker than ever.
Accidents of history and Republican manipulation of the appointments process have led to a Supreme Court as conservative as any in American history. This will affect all of us for decades, often in the most intimate and important aspects of our lives. It cannot be known what it will mean in the long term to have a court that is far more conservative than most of the American people, but it can’t be good for our democracy or society.
Since 1960, there have been 28 years with a Democratic president and 32 years with a Republican president. During this time, Democrats have appointed eight justices to the court and Republicans, counting the new nomination, have appointed 15.
Since 1988 — and I pick that year because no current justice was appointed earlier than the George H.W. Bush presidency — there have been 16 years of Democratic presidents (Clinton and Obama) and 16 years of Republican presidents (Bush, Bush, and Trump.) But the Republican presidents now have nominated seven justices, while the Democratic presidents have nominated four. On a court that is so often divided 5-4, that makes all the difference.
To a large extent, this is a result of the accident of timing as to when vacancies have occurred. Richard Nixon had four picks for the court in his first two years as president, while Jimmy Carter had none his whole four-year term. Bill Clinton, George W. Bush and Barack Obama all served eight years as president and each had two picks for the high court. Donald Trump has had three vacancies to fill in less than four years.
But Republicans have added to that advantage by blocking Obama from replacing Justice Antonin Scalia and rushing through a nomination and likely confirmation of a successor to Ginsburg. Scalia died in February 2016 and a month later, President Obama nominated leading federal appeals court Judge Merrick Garland to replace him.
But Senate Majority Leader Mitch McConnell refused to hold hearings or a vote on the nomination, declaring, “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”
With stunning hypocrisy, the Republicans have made it clear that they will rush hearings and surely confirm Trump’s nominee rather than wait for the election results. Just hours after the announcement of the death of Ginsburg last Friday, McConnell declared, “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
The result is that there will be five very conservative justices — with the newest justice joining Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — and a sixth, John Roberts, who is conservative, but occasionally sides with the liberals. Since Justice Anthony Kennedy’s retirement and until Ginsburg’s death, Roberts was the swing justice on the Supreme Court. He was the ideological middle of the court.
To be sure, he voted with the conservatives much more often than with the liberal justices. Last term, there were 14 5-4 decisions. In 10 of them, the majority was Roberts, Thomas, Alito, Gorsuch and Kavanaugh. In just two of them was the majority Roberts, Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
But Roberts’ occasionally siding with the liberals has mattered greatly and has kept the court from being perceived as an entirely partisan body. Last term, for example, Roberts joined with the liberals to strike down a Louisiana law that required doctors performing an abortion to have admitting privileges at a hospital within 30 miles. This was identical to a Texas statute that the court struck down four years earlier, over Roberts’ dissent. But in June of this year, Roberts said that precedent matters and he was the swing vote in the 5-4 ruling to invalidate the Louisiana restriction on abortion.
Also last term, Roberts, joined by the four liberal justices, held that Trump violated federal law in rescinding the Deferred Action for Childhood Arrivals program, which allowed 800,000 Dreamers to remain in the United States. Roberts wrote the opinion for the court, concluding that Trump’s action was arbitrary and unreasonable in violation of the federal Administrative Procedure Act. Based on the same reasoning, the year before, Roberts joined with the liberal justices in holding that the Trump administration could not add a question about citizenship to the 2020 Census.
These cases would have come out differently with the newest justice. With five staunch conservatives to his right, Roberts no longer is the swing justice.
In some areas, this is going to matter enormously. There is no doubt that there will be five votes to overrule Roe v. Wade. No one questions that Thomas, Alito, Gorsuch and Kavanaugh are ready, willing and eager to do so; their dissents on other cases have drawn a clear roadmap. Now there is a sure fifth vote. I predict it will happen quickly. Conservatives have wanted this for decades and now they have the votes.
The court will say that the issue of abortion is left to the states. About half the states will prohibit all abortions. Abortion will remain legal in places like California, Illinois and New York. Women with money will be able to travel to these states. But poor women and teenagers will go back to facing the cruel choice between an unwanted pregnancy and an unsafe back-alley abortion.
With six conservative justices, the court is certain to hold that all forms of affirmative action are unconstitutional. This will have a devastating effect on diversity in colleges and universities. The court might have done this even with Ginsburg, but now there is no doubt.
Nor is there doubt that the court is about to expand the ability of people, based on their religious beliefs, to discriminate against others, especially against gay, lesbian and transgender individuals. I predict the court will say that bakers and florists and photographers can refuse to serve same-sex weddings. In fact, in June, when the court in an opinion by Gorsuch said that federal law prohibits employment discrimination on the basis of sexual orientation or gender identity, he pointedly left open the ability of employers to do so based on their religious beliefs. Employers who claim a religious basis for discriminating on the basis of sexual orientation or gender identity will be able to do so.
It is a court that will consistently rule in favor of the police and against the rights of criminal suspects and criminal defendants. At a time when society is in the midst of confronting anti-Blackness and racist policing, the court’s conservative majority has shown no awareness that a problem even exists.
The American people, overall, are centrist, perhaps a bit right of center or a bit left of center. After all, Obama was elected in 2008 and 2012, while Donald Trump was elected in 2016. But the new Supreme Court would have five justices at the far right of the ideological spectrum.
This happened once before, in the 1930s, when a conservative court repeatedly struck down progressive New Deal legislation. It created one of the greatest constitutional crises in history and almost led to an increase in the size of the Supreme Court.
Moreover, the legitimacy of the court likely has been greatly harmed by the method of selection. Gorsuch was confirmed only because Republicans in an unprecedented maneuver blocked Garland’s confirmation and then eliminated the filibuster for judicial nominations.
Kavanaugh was confirmed, 50-48, despite powerful testimony as to his near-assault of Christine Blasey Ford and a performance that was stunning in its lack of judicial temperament. And the newest justice is being rushed through in a manner that is shameless and objectionable.
Public confidence in the Supreme Court is sure to erode, as it should. What can’t be known is what it will mean for society to have a court tarnished in this way and so out of step ideologically with the American people.
We all should be worried. Can democracy survive for long with low confidence in all of the three branches of the federal government?
Since Richard Nixon ran for president in 1968 on a campaign against the liberal Warren Court, conservatives have sought to move the court to the right. Nomination by nomination, Republican presidents have succeeded in creating a Supreme Court that is more conservative than any since the 1930s, and maybe the most conservative ever.
And it will remain that way for a long time to come. Thomas is 72 years old, while Alito is 70, Roberts is 65, Kavanaugh is 54 and Gorsuch is 52. This ensures a conservative majority for years, even decades to come.
Democrats will need to think long and hard about what to do about this. But they must not accept the idea that for at least another generation, we will have a court that does not seek to advance freedom and equality, but instead that will protect business and government power. All of our rights and our democracy itself depends on the ability of the Democrats to respond to the Republican Court-packing and to restore balance on the Supreme Court.
Chemerinsky is dean and Jesse H. Choper Distinguished Professor of Law at University of California, Berkeley School of Law.
