I would like to claim prescience for correctly guessing that Brett Kavanaugh would be the Supreme Court pick, but his choice was fairly obvious. And has been noted in various press publications, Justice Kennedy likely retired now because he knew of Kavanaugh’s pick.
Kavanaugh’s rulings and writings are now being scrutinized, particularly when it comes to decisions that can impact on Roe v. Wade. Unfortunately, we’re so fixated on this one specific case that we’re ignoring the real threat that Kavanaugh’s appointment will be in the court.
Roe v. Wade is likely safe
I know that holding up Roe v. Wade is a rallying point, both to protest Kavanaugh’s pick, as well as fire up voters this Fall, but it is highly unlikely that we’ll see Roe v. Wade overturned.
Roe v. Wade, and the equally important case of Planned Parenthood v. Casey, have firmly embedded a woman’s right to an abortion as legal precedent. So firmly that a direct question of overturning Roe v. Wade is unlikely to even arise in future court cases associated with abortion and a woman’s right to make her own healthcare choices.
Danny Cevallos, legal analyst for NBC News notes that the concept of precedence in the legal system, known by the Latin term stare decisis, is not something a Justice like Roberts, or even Kavanaugh or Gorsuch, is likely to toss aside based on ideological beliefs.
A judge with a mind to overrule Roe would have to confront not only Roe itself, but also its subsequent reaffirmation, including that in Casey. Of course, one criticism of Casey was that it paradoxically “overruled” Roe by substantially changing its framework, but then “affirmed” Roe… after arguably overruling it.
Another consideration is this: The court will be reluctant to take away a constitutional privacy right, even if that right was granted with dubious reasoning. If Roe were being decided for the first time by the new court, a conservative majority could easily decline to recognize a new privacy right. However, taking away an already granted, substantially relied-upon right is muchharder for the court to do.
Forget the seeming tossing aside of precedence in recent cases—they pale in comparison to Roe v. Wade.
Aside from legal precedence, there’s another far more political reason not to overturn Roe v. Wade: it’s an effective tool Republicans can use to direct the attention of their followers, as well as distract us, otherwise known as the enemy.
Interestingly enough, it wasn’t until Jimmy Carter started questioning whether religious schools should have a tax exemption that, all of a sudden, evangelicals and the GOP started their anti-abortion crusade. A pro-gun obsession happened at virtually the same time. With both, the GOP had discovered topics that could fixate their followers, all the while obscuring the damage they do to the lives of these same followers.
Add in Trump’s cry for The Wall, and we have a Republican trifecta.
It is true that Roe v. Wade is a rallying cry for progressives, but it’s not an ideal one. Roe v. Wade was not an especially good decision from a legalistic or even women’s choice perspective. In 2013, Ruth Ginsberg noted the issues associated with Roe v. Wade. For one, it wasn’t really centered on women’s rights, as much as it was centered on physician rights. For another, rather than the sweeping SCOTUS decision, a more nuanced decision could have allowed for the continuing fight for abortion rights at the state level.
As Justice Ginsburg stated at the time:
The court had given the opponents a target to aim at relentlessly.
She also stated that because of Roe v. Wade, new efforts focused on “restrictions to access, not expanding the rights of women”.
Well, the converse is also true: overturning Roe v. Wade would give the opponents of this decision a target to aim at relentlessly. There isn’t an elected Republican with half a brain who really wants Roe v. Wade to be overturned, as they know doing so would galvanize a Democratic vote unlike many others in history. I suspect that we could easily reduce the number of red states to a handful if the courts were to overturn Roe v. Wade.
Instead, the GOP will continue as it has in the past: nibbling at the edges of Roe v. Wade in order to progressively weaken it in a manner not as likely to trigger an overwhelming Democratic uprising. By keeping the fights local, and just this side of removing all freedom of choice, the GOP undermines any protectionist movements. Even the Kavanaugh confirmation hearings won’t be sufficient to galvanize a movement massive enough to impact leadership levels in the states, much less Congress. Not by itself.
(Personally, I think it could be healthy to do away with Roe v. Wade. We could then take the fight to streets, and the states, to create truly robust and supported protection for women’s right to control our bodies—regardless of controlling political party. But it won’t happen, and all we can do is maintain the fight against the Republican ducks and their constant nibbling.)
Yeah, gay marriage is also likely to remain safe
Though the Supreme Court decision related to gay marriage is much more recent than that for abortion rights, it has been long enough to become a fully realized fixture of our everyday lives. In addition, gay marriage had achieved a significant degree of support before the SCOTUS decision.
However, this doesn’t mean the conservative judges on the Supreme Court are happy with the Obergefell v. Hodges decision. Again, they think it’s a Constitutional overreach, and they don’t approve of SCOTUS guaranteeing rights unless explicitly delineated in the Constitution. They feel the proper place for decisions such as these is in the state legislatures, or in Congress. The two most important sentences in Roberts dissent in Obergefell are:
Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today.
His point is similar to Ginsburg’s point about abortion rights: once SCOTUS has ruled, the actual fight for the essential human right—whether it be a woman’s freedom of choice, or freedom for gays to marry—ended.
But, the decision has been made, far too many gay marriages have occurred, so it’s very unlikely that Roberts, at a minimum, would so disrupt the country as to strike down Obergefell.
What he and the other conservative judges will endorse are the same actions they’re endorsing with abortion rights: actions that limit the freedoms associated with the earlier rulings. For gay marriage, as with abortion, and even access to contraception, the tool of choice to limit all three is religion. We’ve already seen this in the recent rulings (National Institute of Family and Life Advocates v. Becerra and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission). I can almost guarantee that further challenges based on ‘religious freedom’ will find a sympathetic hearing among the conservative judges.
We can take some solace in the fact that it makes no difference that Kavanaugh is taking the place of Kennedy, as Kennedy has already demonstrated that he’ll go along with the other conservatives in decisions of this nature. At the end of his tenure, Kennedy was little more than a tired, old man, just wanting to finish.
How about the Affordable Care Act?
The only court case of note related to the Affordable Care Act has received criticism for the flimsiness of its legal arguments from both those who support the ACA, and those who don’t. It will lose. If appealed, it will lose. If the Supreme Court is asked to intervene, it will decline.
There is so much that the Executive branch, Congress, and Republican controlled states, can do to damage the Affordable Care Act and our access to affordable healthcare that the conservative band of justices on the Supreme Court won’t need to put themselves out to intervene.
In the Washington Post:
“The most important cases, as least in the near term, that Justice Kavanaugh would rule on would be not broadside constitutional challenges to the Affordable Care Act, but Trump administration actions to pare back and, in some cases, sabotage the ACA,” said Nicholas Bagley, a University of Michigan law professor who supports the law.
What is less safe with Kavanaugh’s Appointment
What is less safe with a Kavanaugh appointment?
A strong, responsible federal government ensures quality of life, robust protections for individuals regardless of where they live, a check on the greedy and indifferent, and careful guardianship of the environment—not to mention proactively working towards limiting the damages of climate change. And all of this, every bit of it, is at risk.
One doesn’t have to do a deep dive into Kavanaugh’s record to see a bias against the rules and regulations necessary to ensure laws are enforced equably and consistently. To him, such regulations are frequently seen as overreach, even though most are not only constrained by existing law but also previous judicial decision. His philosophy about Constitutional Law is a perfect meld with the philosophies shared by Thomas, Alito, Gorsuch, and Roberts.
They will happily support Trump’s efforts to eviscerate our government, at the same time they will do everything they can to block a future President’s efforts to repair Trump’s damage.
Environmental laws protecting our air and water, ensuring the safety of endangered species, protecting consumers and the disadvantaged…these are all critically at risk with the appointments of both Kavanaugh and Gorsuch. While the rest of us have been focused on Roe v. Wade, the real agenda of the Federalist Society, and Trump, has been to severely weaken our government.
In addition, we’ll see shrinking support for civil rights, voting rights, and immigration. We will become a nation of walls manufactured in the highest court of the land, at the very same time voting is becoming increasingly encumbered in urban areas—particularly those with large populations of non-white and non-Christian voters. We can also kiss good-bye any chance to permanently eliminate gerrymandering at the federal level.
One could almost think that the homogeneous makeup of the conservative court (and I include Thomas in this description), generates a disdain for the working poor and those with less advantages, while engineering a strong empathy with powerful people and interests. One can think this, and be correct.
The five textualists in the court—Thomas, Alito, Roberts, Gorsuch, and Kavanauch—will enforce adherence to the literal text of the Constitution by doing everything possible to turn back the hands of time and re-creating many of the conditions that existed when this country was first born. Believe me when I say that our country at the time of its birth was a robust and rich environment for white, Christian, straight men, but much less so for everyone else.
So, are we screwed?
It’s easy to despair at Kennedy’s retirement and Kavanaugh’s appointment. However, remember that Kennedy was not as liberal as our fond memories make him. In recent rulings he has demonstrated a return to his more conservative roots.
But there is no question that Kavanaugh is very conservative. He would not have ruled to support abortion rights. He would not have agreed with Obergefell. Where we see Gorsuch lead, Kavanaugh will surely follow. And both will follow Alito and Thomas.
The wildcard in this is Roberts. He’s just as conservative, but he also doesn’t believe that the Supreme Court should upend established rights, and cause mass upheaval in today’s society. The Janus v AFSCME decision related to public employee unions actually does not upend established rights, nor cause major disruption. Not at the same level as overturning Roe or Obergefell. As Benjamin Sachs and Sharon Block noted in Vox: The Supreme Court just dealt unions a harsh blow, but it doesn’t have to be a deadly one.
Again, though, Roberts will have few qualms about limiting rights previously granted if he believes they don’t rigorously adhere to what he believes the Constitution allows.
We can no longer rely on the courts. As President Obama wrote in his book, “The Audacity of Hope”, we Democrats have relied too much on the courts. In hindsight, I suspect he now realizes he relied too little, but what’s done is done. He is correct, we have become too dependent on the courts.
We’ve neglected local and state races. We rely too much on inspiration to motivate voters for Congress and President. We fixate on single issues and personalities rather than the bigger picture. We talk more about what someone said on Fox than what a Progressive has said in a tight, critical race.
The real key to holding a conservative Supreme Court in check is to balance it with a liberal Congress, President, and state governments. An election is coming this November. We need to begin.