Progressive totems on the chopping block as US supreme court veers right

Tom McCarthy
·5-min read
<span>Photograph: Leigh Vogel/EPA</span>
Photograph: Leigh Vogel/EPA

As the dust settles on the Democrats’ futile efforts to stop Donald Trump’s third supreme court nominee, Amy Coney Barrett, from ascending to the bench, progressive activists and analysts are now casting wary eyes on the unsettling years ahead.

Related: Revealed: ex-members of Amy Coney Barrett faith group tell of trauma and sexual abuse

The court’s conservative bloc is ascendant, with a locked-in 6-3 majority that will minimize the need for justices on the right to seek out moderate ground in most rulings.

Prominently sidelined, now, is Chief Justice John Roberts, whose institutionalist instincts led him to cast crossover votes to prevent the dismantling of the Affordable Care Act, to preserve a program protecting young immigrant arrivals and to uphold, on the grounds of precedent, the basic protections conferred by Roe v Wade.

It is no longer Roberts’ court, analysts say, because the chief justice has been shuffled to the bottom of the conservative deck, which now stacks high enough on the court, with the arrival of Barrett, to dispatch whatever rulings it pleases on issues from environmental regulations to reproductive rights to voting rights.

“She will help to dramatically flip the balance on the court,” said Nan Aron, president of the progressive Alliance for Justice advocacy group, of Barrett. “It will be certain now that the right has captured the federal judiciary, at the supreme court level, and that they are seeking to advance a dangerous agenda.”

Every issue of importance to progressive activists, starting with the basic right of every American to vote and extending to the need for regulations that protect employees from dangerous working conditions and consumers from predatory lenders, is on the chopping block with Barrett on the court, analysts say.

The court has recently issued rulings about the status of immigrants, the protection of LGBTQ+ people under anti-discrimination statutes, the ability of a president to come under criminal investigation, and the right to an abortion that could be overturned or subsumed in a churn of cases tailored by conservative activists to appeal to the new bench lineup.

The first coup by the Barrett court could be vacating, after years of conservative obsession over the issue, Barack Obama’s healthcare law, which would result in the loss of insurance protections for tens of millions of American and in some cases deny life-saving medical treatments to those with pre-existing conditions.

“The urgency springs from the fact that the court is wildly out of balance, making it the most conservative court since the 1930s, with an aggressively conservative tilt” that is out of step on almost every major issue with public opinion, Aron said.

Certain ground won in court fights in recent decades may be safe in the near term, even under the new 6-3 conservative supermajority, analysts said.

It is no longer Roberts’ court, analysts say, because he has been shuffled to the bottom of the conservative deck

In an interview on Fox News last weekend, Pete Buttigieg, the former Indiana mayor and Democratic presidential candidate, expressed concern that Barrett’s arrival on the court could threaten his marriage to his husband Chasten.

“My marriage might depend on what is about to happen in the Senate with regard to this justice,” Buttigieg said. “So many issues are on the line.”

But it is “very unlikely” that Barrett would be interested in revisiting rulings protecting same-sex marriage, said Keith Whittington, a professor of politics at Princeton University specializing in constitutional theory.

“The fact is that public opinion has moved quickly and dramatically in favor of same-sex marriage, and one of the things she emphasizes about when the court ought to stand by precedent is whether or not the public has broadly accepted the precedent the court has established,” said Whittington.

I think in the context of same-sex marriage, there’s both a substantial reliance interest, which she also emphasizes – in this context, there are people who are married, and have built relationship around the assumption that they have legal marriages” – and public support.

Other issues, such as reproductive rights, were already under significant conservative assault before Barrett’s arrival. A Barrett court could erode those rights in new ways, said Aziz Huq, a professor of law at the University of Chicago.

“Roberts pretty clearly said, ‘I’ll let states gut access to abortion’,” in a recent ruling that tossed a Louisiana law restricting abortion access, Huq said. “As of the summer of 2020, if you live in a state where the governor and the legislature is anti-abortion, access will likely be reduced to one or zero clinics very soon.

“Then I think that the really interesting issue becomes the regulation of access to abortifacient pharmaceuticals that can be prescribed and delivered by mail.”

How a justice may rule in any one case is unpredictable, and justices appointed by Republicans – including by Trump – have recently ruled in unexpected ways, as when the Trump appointee Neil Gorsuch ruled in favor of LGBTQ+ anti-discrimination protections and Roberts wrote on behalf of immigration rights in a pair of rulings that Trump called “shotgun blasts into the face”.

But anticipating a hostile court in the near term at least, progressive activists are standing up plans to expand the court in the event that Democrats seize control of Congress and the White House.

“I think it’s critically important to restore fairness and independence to the federal judiciary,” Aron said. “Alliance for Justice will be pushing an effort to expand the court in order to democratize it. We will also support eliminating the legislative filibuster and adding new states – Washington DC and Puerto Rico” in an attempt to bring the US Senate more in line with the country.

Aron lamented what Barrett might do to the legacy of the liberal justice she replaced, Ruth Bader Ginsburg.

“The fact that she’s replacing the justice who fought throughout her life, as a lawyer, a teacher and as a justice, who worked for equal rights for women and men – makes this appointment that much more disappointing,” Aron said, “given that Barrett will undo Ginsburg’s legacy.”