Soon, the Supreme Court will have a 5-person Republican majority, 80% of it nominated by presidents who lost the popular vote, fully subscribing to the judicial agenda of the Federalist Society and Heritage Foundation. Toobin has a good summary of the potential effects:
It’s all the more important, then, to articulate in plain English what, if such a nominee is confirmed, a new majority will do.
It will overrule Roe v. Wade, allowing states to ban abortions and to criminally prosecute any physicians and nurses who perform them. It will allow shopkeepers, restaurateurs, and hotel owners to refuse service to gay customers on religious grounds. It will guarantee that fewer African-American and Latino students attend élite universities. It will approve laws designed to hinder voting rights. It will sanction execution by grotesque means. It will invoke the Second Amendment to prohibit states from engaging in gun control, including the regulation of machine guns and bump stocks.
And these are just the issues that draw the most attention. In many respects, the most important right-wing agenda item for the judiciary is the undermining of the regulatory state. In the rush of conservative rulings at the end of this term, one of the most important received relatively little notice. In Janus v. afscme, a 5–4 majority (including Kennedy) said that public employees who receive the benefits of union-negotiated contracts can excuse themselves from paying union dues. In doing so, the Justices overruled a Supreme Court precedent that, as it happens, was nearly as old as Roe v. Wade. (Chief Justice John Roberts, who has made much of his reverence for stare decisis, joined in the trashing of this precedent, and will likely join his colleagues in rejecting more of them.) The decision not only cripples public-sector unions—itself a cherished conservative goal—but does so, oddly enough, on First Amendment grounds. The majority said that forcing government workers to pay dues violates their right to free speech. But, as Justice Elena Kagan wrote in a dissent, this is “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” She added, “Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long.”
The rest of the list, however, is overblown. First, the issue in cases such as Masterpiece Cakeshop isn’t whether shopkeepers can refuse to serve gay customers. It’s whether certain artistic professionals (who serve gay customers all the time, by the way) can be forced to use their artistic talents to help celebrate events or create messages that violate their conscience.
“This case wasn’t about whether shopkeepers can refuse to serve gay customers. It’s about whether shopkeepers can refuse to serve products to LBGT customers they serve to straight customers, because they do not want to ‘celebrate events’ involving LBGT people.” OK.
Second, if the Court ends state-mandated affirmative action, it will “guarantee” no particular racial outcome.
Toobin’s description of the immediate effect is, in fact, accurate.
Third, Toobin is playing standard word games about voting. Presumably, when he claims that courts will “approve laws designed to hinder voting rights,” he’s talking about measures such as voter ID. Yet “nine of the eleven states that have implemented so-called strict ID laws either saw an increase in turnout or exceeded or exceeded the national average in turnout in 2016.”
This data is, to put it mildly, not a rebuttal of Toobin’s point at all. In addition to the fact that intrastate, not interstate, data is what’s relevant, voter ID does not figure to have a large impact on total turnout; the problem is that is disproportionately targets certain groups. But the bigger problem is that French ignores at the other ways in which the Court has undermined access to the ballot from this term: making Sections 2 and 3 of the Voting Rights Act essentially impossible to enforce after having struck down Section 4 in one of the worst decisions in the history of the Court, upholding a discriminatory voter purge in Ohio, and refusing to rule even the most egregious partisan gerrymanders unconstitutional (practices that are now nearly certain to be explicitly upheld.) Brother Toobin, if anything, understates.
Fourth, when Toobin says that the Court “will sanction execution by grotesque means,” he’s painting a lurid picture without a single concrete example. He’s also implying that there’s a way to execute a man that isn’t “grotesque.” The question is whether a method is “cruel and unusual,” not whether it’s “grotesque,” and there is no evidence that an originalist Court would sanction cruel and unusual punishments.
1)I would say Alito’s holding that executions that carry a substantial risk of torture are constitutional is pretty compelling evidence; 2)the Court’s most prominent originalist “would apparently not rule out a death sentence for a $50 theft by a 7-year-old.” So French’s claim is true only in a purely and meaninglessly tautological sense.
Fifth, the available evidence is that an originalist Court is likely to follow the Heller precedent and protect weapons in “common use for lawful purposes.” That likely includes semi-automatic rifles and pistols with standard-capacity magazines. It does not include “machine guns.” Nor does that definition include “bump stocks.”
Here, French has at least a half point. I would guess that the new Court will create a more stringent enforcement standard than Heller, but I’m not sure how far they’d go. But French’s certainty isn’t convincing either.
But, essentially, like Kennedy Toobin is right. But the confirmation hearings will certainly involve 1)denying that Trump’s nominee will pursue goals legal conservatives have long advocated, and/or 2)arguing that pointing out what the consequences of this agenda would be is horribly uncivil.