Appointed for a lifetime, justices can change over the years, sometimes in a way that surprises and annoys the presidents who nominated them. They are also supposed to respect precedent, so it’s impossible to say how the high court will behave on all issues.
But there is now a very real prospect that a woman’s right to an abortion, guaranteed by the 1973 case Roe v. Wade, could be overturned or limited. A conservative-dominated Supreme Court could also roll back future attempts to regulate gun laws, hinder attempts to regulate polluters in the fight against climate change, and embolden challenges to legislation on voting rights and outlawing racial discrimination. And fear is growing among supporters of same sex marriage, only legalized in 2015.
Former President Barack Obama’s signature health care law, which allowed millions to buy insurance plans, already looks to be in trouble. The court will hear the Trump administration’s attempt to kill it off after the election. Even if Trump’s latest pick is not yet in place and Chief Justice John Roberts votes to save the law for a third time, a potential 4-4 tie among justices would mean a lower court ruling invalidating it would stand.
Demographic trends in the United States look unappealing for Republicans; there is a strong argument that the country will become more secular, urban, socially liberally, and racially diverse in the next few decades. But a conservative Supreme Court could be a bulwark against political change — one reason why conservatives have spent several generations working toward building this majority and why Democrats will long curse their failure to beat Trump in the 2016 election that opened the way to this extraordinarily important moment.
‘What was then a hypothetical is now a reality’
The two most divisive, tumultuous events in American politics — a Supreme Court nomination battle and a presidential election — are about to take place at the same time.
Democrats are furious, rightly accusing Republicans of gross hypocrisy: In 2016, when conservative Justice Scalia died in February of that year —months before the election — Senate Majority leader Mitch McConnell refused to even consider then-President Barack Obama’s nominee, saying voters should ultimately decide who should get to fill the vacant seat. Now, with a Republican in the White House and the election just 44 days away, McConnell is refusing to apply the same principle.
The Kentucky senator’s power play four years ago turned out to be one of the shrewdest and most ruthless moves in modern American politics, paving the way for the court’s conservative majority. There’s little Democrats can do to stop McConnell pressing ahead. Even if Joe Biden wins the election and Democrats win back the Senate in November, McConnell could still plow onward to confirm Trump’s pick in a lame duck session of Congress before new lawmakers arrive in January.
That prospect has some Democrats — who believe the chance of building a liberal majority on the nation’s top bench has been stolen from them, are thinking of nuclear options — like expanding the size of the court itself if they win back the Senate.
The sudden Supreme Court fight could also have unpredictable knock-on effects on the election itself. It will allow Trump to try to take the focus off the pandemic and to solidify his standing among evangelical and socially conservative voters who might frown at his morals — but for whom a conservative Supreme Court is a life and death voting issue. But reviving the fight over abortion in the nominating battle may alienate suburban women voters Trump needs to win a second term (they are already moving away from him) and vulnerable Republican senators might prefer not take a stand on an issue that could anger the moderates they need for survival. Meanwhile, the vacancy has already electrified the left and could drive more Biden voters to the polls.