By Eric Segall
The Trump Administration is finally over, and the Biden Administration will be able to undo some of the great damage done by its predecessor. For example, Trump’s irrational rule requiring women to purchase medical abortion pills in person, overruled by a federal judge but then reinstated by the Supreme Court, will almost certainly be reversed by Biden’s Department of Health and Human Services. There are a myriad of other executive branch decisions and regulations that Biden can, over time, reverse.
But there is one important Trump legacy the new President will not be able to change--the installing of three ultra conservative Justices who along with Chief Justice Roberts and Justices Thomas and Alito, will, absent serious Court reform, overrule important legislation for decades or more. This six-three GOP Court may be the most conservative one since before the New Deal. I detail below what to expect from the Roberts Courts in the next few years and then suggest a few desirable, but highly unlikely, fixes.
The Justices will probably slice and dice abortion jurisprudence until the issue is returned to the states. They will likely end affirmative action, which was hanging by a thread before Justice Kennedy retired and Justice Ginsburg passed away. They will do so based on an anti-historical, non-textual colorblindness rule inconsistent with the purposes of the Fourteenth Amendment. That institutional racism is still ingrained in our schools, our courts, and our board rooms will not matter to this Court.
The Justices are also extremely likely to make gun rights stronger, allow the religious to object to laws designed to prevent discrimination against LGBTQ folks, and continue to ignore the First Amendment’s Establishment Clause--thus allowing religion and government to mix in ways deeply offensive to our ever-growing population of atheists, agnostics, and even people of faith who believe in separation of church and state.
The Court over the next few years will also continue to use the First Amendment as a sword to invalidate many laws that have little or nothing to do with free speech; such decisions will have the purpose and effect of allowing increasingly large sums of money in politics and lifting regulations on business. The Court has held corporations have the same free speech rights as individuals and that writing checks to politicians in far-away places is pure political speech even though writing checks is not speech, and even if it is, the government and the American people should have the right to limit that speech to pursue compelling interests in fair elections.
Some election law experts like Professor Rick Hasen are concerned the Justices might even reverse a 1976 landmark case that allowed Congress to limit campaign contributions. The Court may decide that ruling is no longer good law and allow billionaires and corporations to donate as much money as they want to political candidates. The day it does so will be a disaster for our state and federal elections.
The Justices have already demonstrated that they will be unconcerned with how the death penalty is imposed in a racially discriminatory and cruel and unusual manner. Several of the executions carried out during the federal government’s rush to kill as many people as possible in the waning days of the Trump Presidency were stopped by decisions of the lower courts, only to see those rulings reversed by the Supreme Court without the Justices providing any reasons and bypassing the courts of appeals in unusual procedural moves. Justice Barrett went along with this machinery of death, dashing the hopes of some that her faith would possibly make her resistant to the death penalty.
The Justices will continue to allow states to suppress the votes of the poor and people of color. They have already: upheld voter identification laws despite no evidence that in-person voter fraud has been a problem in state and federal elections; allowed states to purge voter rolls which had a disproportionate effect on the poorest voters; and of course, in their most notorious election-related opinion, struck down the key provision of the Voting Rights Act, thereby allowing states with long histories of targeting minority voters to once again pass legislation making it much harder for people of color to vote. This trend will continue and likely get worse as the Justices are likely to allow new and pernicious voter suppression methods.
But it is not only the front-page issues that progressives need to worry about. The Court will continue to wrongly interpret the Federal Arbitration Act to bar consumers and employees from suing for injuries sustained under state law--a result completely at odds with the history of the act. And the Court will continue to make class actions harder and much needed climate change and other regulations on business more susceptible to legal challenge. This will continue to be the Court of big business on just about every front.
So what to do? Many reforms have been proposed by constitutional scholars, including: Court expansion (adding seats); jurisdiction stripping with respect to important issues (legislation prohibiting the Justices from hearing specified legal questions); and ending life tenure by, for example, legislation giving Supreme Court Justices eighteen-year terms and then allowing them to sit on the lower courts. All of these measures require the ending of the filibuster in the Senate because getting 60 votes for Court reform is unlikely given GOP opposition (now that they own the federal judiciary). The Democrats in the Senate should end the filibuster if necessary to pass one or more of these reforms. Unfortunately, the political will to do this is probably lacking.
So even though the official, Trump era is at an end, his legacy will live on for decades because of the oversized role the Supreme Court plays, or should I say, we allow it to play, in our political system. But, as Alexander Hamilton said centuries ago, the Court has no purse (money) or sword (military). Congress could dramatically limit the power of the Court in numerous constitutional ways, but I won't hold my breath, and neither should you.