Barack Obama observed that “elections have consequences,” and we will soon learn one of the consequences of electing Donald Trump president when the Supreme Court hands down decisions on several hot-button issues.
The court is expected to issue decisions before its summer break next month on cases involving abortion rights, immigration, gay rights, presidential power, and religious freedom. Those decisions will be influenced by Trump’s two conservative appointees to the court—Brett Kavanaugh and Neil Gorsuch.
Gorsuch replaced another conservative, Antonin Scalia, but Kavanaugh took the seat of Justice Anthony Kennedy, a long-time swing vote on the court who voted liberal too many times to suit conservatives. That appointment gives the court a shaky 5-4 conservative majority—some people think Chief Justice John Roberts is a budding Earl Warren in a conservative’s clothing.
Kavanaugh and Gorsuch are the most visible results of a Republican push to get as many conservatives in federal judicial positions as possible. At times, that appears to be the only agenda of Senate Majority Leader Mitch McConnell, and there are reports that elderly conservative judges are being urged to retire so they can be replaced by younger ones who can serve 20 to 30 years on the federal bench.
We should get a good sense of the impact of Kavanaugh and Gorsuch between now and the end of June. How important are these decisions? “I have been teaching constitutional law for 40 years, and I cannot recall a Supreme Court term with more potential blockbuster cases in more areas of law,” said Erwin Chemerinsky, dean of the U.C.—Berkeley law school.
The cases he’s referring to include the following:
Abortion rights: The court will rule on Medical Services LLC v. Gee, which challenges the constitutionality of a Louisiana law that requires doctors performing an abortion to have admitting privileges at a hospital within 30 miles.
The court struck down a similar Texas law in 2016, ruling the law did nothing to protect a woman’s health but did impact the availability of facilities where abortions are performed. But that was before Kavanaugh and Gorsuch joined the court, and conservatives see this case as an opportunity to further restrict the availability of abortions and perhaps even overrule Roe v. Wade.
Immigration: The court will rule on the legality of Obama’s executive order that accorded deferred deportation status to over 700,000 individuals known as “Dreamers,” individuals who were brought to the U.S. before the age of 16 and are either in school, have graduated, are in the military, or have been honorably discharged. The order, Deferred Action for Childhood Arrivals (DACA), protects them from deportation for two years and lets them obtain work permits.
Gay, transgender rights: The court will decide on two cases where men were fired for being gay, and a third case where a woman was fired after informing her employer that she was transitioning from male to female.
The question before the court: Are these violations of the 1964 Civil Rights Act? The law makes no mention of sexual orientation but previous court decisions have expanded rights for gays and lesbians. All of those decisions were written by Kennedy.
Presidential power: The court will rule on three cases where lower courts upheld subpoenas concerning Trump’s financial records. Trump is asserting a broad immunity from investigation and legal process. The cases touch on the issue of checks and balances, and whether the president is effectively above the law.
Religious freedom: Montana’s legislature passed a law that gives tax credits to parents who send their children to private schools, both secular and religious, but the state’s Supreme Court ruled the law violates the state constitution’s prohibition against direct and indirect aid to religion.
The U.S. Supreme Court will decide if the state court decision violates the First Amendment’s guarantee of free exercise of religion. There is also the underlying issue of whether the government is required to give aid to religious institutions if it provides it to secular ones.
There’s no guarantee the court will render clear, unambiguous decisions in any of these cases. The court historically has—and will again—affirm or reject lower court rulings based on narrow grounds that dodge the main issue, and could even punt on an issue, as it did earlier this term in a case involving the transportation of legal firearms in New York state.
But I hope the court renders decisions that give voters a clear understanding of the consequence of their presidential vote in November. Given the age of two of the four liberal justices on the court, we will probably have a 7-2 conservative majority on the court in the next four years if Trump is reelected.
Voters need to decide if that’s the course they want the court to take.