Monday, January 25, 2021

The Trump Era is Over: Prepare for the Supreme Court’s Conservative Onslaught

 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.


John Culhane said...

Thanks a heap! A bleak way to start the week. Unfortunately, everything you say here seems very likely, if not inevitable. I think the regulatory pushback you mention is, if anything, undersold here. It's just awful.

Joe said...

At some point, there are ebbs and flows regarding the courts, if history is any judge.

I don't know how it will affect the courts, but think there will be some shift in normal practice given how far Republicans went. We already saw the end of the nomination filibuster. What more will happen remains to be seen.

Anyway, Prof. Segall has long promoted a reduction of the powers of the courts as a whole, in part citing "true original understanding" (he likes to quote a Hamilton phase, but that only works if you sing). I am open to the general idea to some extent though as to judicial review generally I'm more on Prof. Dorf's side in some respects.

Just to state my stance, I think the Gorsuch/Barrett business was a rank violation of valid nomination norms. Norms matter and over the years they have affected how the Constitution works as much as text etc.

Me? I think Scotus should be expanded by at least two seats. And, the House should do a full investigation of Kavanaugh, both his financial situation (the Kennedy son thing to me is overblown since it happened so long ago etc., but there are issues financially, including the baseball stuff) and other matters.

The Kavanaugh nomination was a horrible thing too on process grounds and the relevant subcommittee(s) in the House should look into it. This might not "matter" directly but it is the right on the merits, something might come out if only clarity that nothing is there in some cases & it can be useful as pressure on other reforms, including pending ethical reforms and so forth. There is a pending bill out there dealing with ethical rules, televising arguments and so forth. It is something liable to get some Republican support and it is a mild reform that has some chance to pass.

egarber said...

So let's play out a scenario:

1. The SCOTUS overturns Roe.

2. After getting rid of the filibuster, Congress codifies Roe via statute - making it a national right to obtain an abortion within interstate commerce (preempting any state ban).

3. Somebody files suit to overturn that law as an improper exercise of commerce power. And it ends up in the SCOTUS.

What does the Court do? I mean, just to throw out a starting point. Might the justices dodge any such claim on standing grounds? After all, conservative justices are pretty aggressive in using standing doctrine to avoid the merits on things. Or in the other direction, do they ignore the obvious commerce clause precedents even Scalia signed up for, inventing some novel line of demarcation to throw out the statute?

kotodama said...


I don't think this scenario is so realistic, because Roe likely won't be overturned anytime soon, at least in so many words. Death by a 1,000 cuts would seem to be the preferred strategy. That lets the reactionaries keep Roe around, in name only if nothing else, as their favorite boogeyman and rallying cry.

But I'll go along and consider the result when even 1K cuts becomes too intolerable and Congress takes the actions you describe in Step 2. (Again, you note that also requires junking the filibuster, another possibly unrealistic move under present circumstances).

We then get to Step 3. I'm not sure that's how it would work exactly. What I mean is, would "someone"—i.e., an individual person, or maybe a private organization—file suit attacking the federal statute directly? I think it's more likely a reactionary state would enact a new law—or just continue to enforce its existing laws—in open defiance of the federal right. Then, in an action to enforce the state law(s), the subject of enforcement would raise the federal right as a preemption defense. In turn, the states would argue that the federal statute exceeds the commerce power in the first place—as you stated.

Finally, we arrive at the critical questions you posed. With my adjustments to Step 3, standing wouldn't seem to be an issue at least. As for the substantive merits, well, that actually takes us back to Step 1. If we go with your original scenario and SCOTUS (or the reactionary wing, anyway) had actually overturned Roe outright, then, yes, I think it's likely those same justices wouldn't have too many compunctions with invalidating a statute that tried to reinstate Roe, thereby undoing what the reactionaries had just done.

But with my adjustments to Step 1, it's less clear. My feeling is the right-wing majority would still be ok with invalidating the statute, because that not only adheres to the 1K cuts strategy—if the federal statute is nullified, the issue "just goes back to the states"—but also it aligns with the reactionary project to eviscerate the commerce power.

As a postscript I'll just note that it's not so clear that Scalia signed up for using the commerce power in this way—i.e., to enact federal legislation around abortion. He actually signed on with Thomas in his Gonzales v. Carhart concurrence, which at least questioned if the commerce power supported such legislation. (Of course, they wouldn't actually argue against it at the time, because that would inconveniently upset the abortion ban at issue in that case.) Now that more reactionary fellow travelers have joined and/or replaced Scalia/Thomas, I could see a majority reaching the conclusion that, when a grant—instead of a ban—of abortion rights is at issue, you know what? That does actually exceed the commerce power. (How convenient that would be, and I always assumed Thomas wrote that concurrence just in case a situation like this later arose.)

egarber said...

Thanks for the reply hardreaders... really good stuff.

In the end, I'm super curious about how the court would rule in a way that distinguishes these in the context of the commerce clause:

A. Congress passes a statute guaranteeing a woman the right to an abortion per the contours of Roe.

B. Congress passes a statute guaranteeing a woman the right to have tubal ligation surgery.

It seems unlikely even these 6 justices would throw out (B); otherwise, product rights across the board would be at risk.

Is it therefore possible that the court *might* lay some new constitutional groundwork around fetal rights to defend a limiting principle? I mean, the ultimate dream among influencers on the right is a constitutional right to life*. As misguided and activist as that would be, at least it would spare us headache inducing pretzel contortions around the commerce clause.

*Maybe the experts here (I'm definitely not one of them) can enlighten us on whether this is a burgeoning thing among any legal scholars. Per a previous comment I made somewhere, if something as zany as "legislatures-alone" can become a thing (in the context of presidential elections), then I wouldn't be surprised by anything :)

kotodama said...

Sorry for the seriatim comments, but combining the response to egarber with more content would have resulted in a comment of Tolstoyesque proportions.

As Joe noted, there some ethics reforms—albeit fairly modest ones—that could be achieved with (hopefully) uncontroversial, bipartisan legislation. Fix the Court has advocated for these sorts of things, along with other, more wide-reaching reforms.

I would also just point out that some of the "under-the-radar" (although not for junkies like us who frequent this blog) issues the OP mentioned, like arbitration and class actions, are possibly amenable to legislative fixes as well. Some such issues are even "hot-button" ones like § 1983, federal habeas, universal injunctions, and RFRA. And there are still "deplorable" sub-constitutional decisions from over a decade ago, e.g., Twiqbal, that await a legislative cure. Of course, some have noted that even when addressing statutory problems, it's possible that a reactionary SCOTUS majority could "magically" find that its preferred interpretations are in fact required as a matter of constitutional law. For example, some have argued that would happen with qualified immunity. I have also heard rumblings in some corners that class actions themselves could violate due process in certain instances.

Joe said...

The SCOTUS overturns Roe.

I question if this will happen, but I'll go with the hypo, especially since it is at possible they will water down Roe further & Congress will respond somehow that results in the question coming up.

any such claim on standing grounds

A state party would likely have standing and the Supreme Court is unlikely to totally avoid such a basic federalism question. It shouldn't either.

What they will do is unclear though via a mixture of pragmatics and principle it is possible that the law would be upheld, especially if it is carefully written.

Health clinics are clearly commercial and generally have interstate commerce aspects, especially as currently understood. Noting I think it was wrongly decided, this isn't merely an average person needing to have insurance. It is clearly a direct economic activity, part of a national health industry, often involving people crossing state lines. This should be enough for Roberts and one other conservative to sign on.

Joe said...

As hardreaders note, there are various statutory legislation possible, though I'm sure some will raise new constitutional questions too.

To toss it out there, I have already seen talk of action being pushed (with one or more Republican senators onboard) to advance the ERA. Three states "ratified" it though that is currently being debated in the courts among other things.

I will end there.

egarber said...

So one thing that seems pretty clear on standing:

The likely path to a challenge would be a state that passes a ban or something in conflict with the new federal statute. Then that state becomes a valid party pushing back on Congress in court.

egarber said...

<<I think it's likely those same justices wouldn't have too many compunctions with invalidating a statute that tried to reinstate Roe, thereby undoing what the reactionaries had just done.

To nitpick a little here, this hypothetical law wouldn't be an attempt to battle the SCOTUS on its turf, right? Unlike say, Boerne, in my scenario Congress wouldn't be defining a constitutional right beyond what the court has interpreted under a particular provision (only the courts can interpret the 14th). Instead, it would simply move the issue into a domain it controls - commerce clause authority.

In other words, Congress can't use sec 5 of the 14th to enforce a fundamental right not recognized by the SCOTUS, but it can create a statutory right via some other authority. I.e., maybe there's no right to pay equality under the 14th, but Congress can regulate commerce to enforce it as a positive right. That kind of thing. Ok, I'm getting off track. Ha :)

kotodama said...


Thanks to you for kicking off the discussion and thawing out my cognitive juices on a frosty (at least around these parts) Monday morning.

I'll take your earlier response first. (Embarrassingly, I had to look up what tubal ligation surgery was exactly.) Maybe I'm a pessimist, but I can see the Court looking for a way to nullify (B) and distinguishing it from other medical procedures on the grounds that it relates to contraception. It's not quite the same, but in the recent case on the shadow docket (FDA v. ACOG), we saw distinctions (spurious ones, in my view) made between the abortion pill and pretty much all other drugs. Maybe it would be the so-called fetal personhood doctrine, but in any case, if some folks out there are still itching to undo Griswold v. CT—and they are—then (B) would likely be in the crosshairs too. As Jeff Goldblum once said, "life", uh, finds a way.

To your latest response, I get there are differences between Boerne/RFRA and your hypo, but would that really impact the outcome as a practical matter? Again, just taking your hypo on its own terms, I'm struggling to envision a scenario where the Court flat out annihilates Roe, but when Congress turns around and tries to directly undo the Court's work, just using commerce instead of 14A, the Court says "well, I guess that's actually fine" and lets it go. Like I mentioned before, I'm just going by what Thomas et al. themselves said, or at least strongly implied, in Gonzalez, and assuming that they have more comrades in arms now than they did in 2003.

One other possible data point not mentioned in the OP is the lingering threat of court packing. Although it doesn't seem likely to happen in the near term, given that Ds have what's said to be a fairly good Senate map in 2022—but, of course, the governing party usually loses ground in midterms—would SCOTUS actually be on safer ground by taking a more circumspect, not aggressive, approach for now? That way, they don't give Ds ammunition for the midterms and talking points that could impart more momentum to court packing. Per today's order list and commentary on SCOTUSBlog, the Court does seem to be "laying low" so far, so maybe that is their strategy.

Unknown said...

I don’t take this post seriously, Mr. Segall. These claims all seem to be nothing but fear-without-reason which had many of us concerned judges would let trump do whatever he wants for four years (ignore Neomi Rao; she’s a fluke). Perhaps I missed it but none of the concerns raised actually cite statements from members of the Court saying these events should happen. So, it sounds a lot like leaps of logic, much of which is based on stereotypes, such as the popular presumption Barrett would agree to overturn Roe because she is Catholic while overlooking the fact J. Sotomayor has tried to uphold the decision while also Catholic.

Bring me relevant quotes in context and you might have something. Right now, you don’t from my perspective.

Joe said...
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