The blockbuster Supreme Court term that just ended was a (nearly) unmitigated disaster for movement conservatives. Chief Justice John Roberts declined to overturn precedent on abortion rights. Conservative activist Justice Neil Gorsuch showed he would join the court’s liberals when the statutory text tells him to. The natural question then is, what’s next? What are the implications for the future of the court?
The short answer is that the court’s future direction is in flux like no other time in recent memory. And what happens next will be determined by the 2020 election and the justices’ health.
The first crucial point here is that, had Roberts and Gorsuch not crossed the court’s ideological lines in the most high-profile cases of the term, we would be looking at an extremely conservative court for the foreseeable future, regardless of the outcome of the November vote.
The court has five conservative justices who until this term seemed capable of acting as an unassailable voting bloc for the indefinite future. (The oldest, Justice Clarence Thomas, is only 72.) This bloc was formed after Senate Majority Leader Mitch McConnell and the Republican Senate blocked a confirmation vote on Judge Merrick Garland during the Obama administration, allowing a newly elected President Donald Trump to appoint Gorsuch. The retirement of Justice Anthony Kennedy, a swing voter who repeatedly delivered liberal-friendly results on issues like gay rights, abortion and Guantanamo, then allowed Trump to appoint Justice Brett Kavanaugh, who is (so far) a much more reliable conservative.
This conservative majority was the first on the court in nearly a century, and conservative activists anticipated that it would overturn Roe v. Wade and hold the line on cultural issues like transgender rights.
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