Jurisprudence

This Supreme Court Term Will Launch a Conservative Revolution

The court tried to lay low after the Kavanaugh hearings. This year, it will take center stage in the 2020 election.

The U.S. Supreme Court, seen on Sept. 16.
Alex Wong/Getty Images

After Brett Kavanaugh joined the Supreme Court in October 2018, most of the justices seemed eager to do whatever they could to keep SCOTUS out of the limelight. Less than two weeks earlier, Christine Blasey Ford had declared on live TV that Kavanaugh sexually assaulted her as a teenager; Kavanaugh, in response, accused Democrats of orchestrating a “grotesque character assassination” driven by “pent-up anger about President Trump” and “revenge on behalf of the Clintons.”

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The Supreme Court’s legitimacy rests in large part on the perception it is a nonpartisan institution, but Kavanaugh joined the bench engulfed in a toxic cloud of political rancor. In the year after the ugly confirmation hearing, the justices mostly kept their heads down, ducking many controversial cases for no apparent reason. They decided only two bona fide blockbusters, throwing partisan gerrymandering claims out of federal court and blocking the census citizenship question. Meanwhile, they dodged cases about Dreamers, abortion, religious freedom, and discrimination, effectively deciding not to decide.

But the Supreme Court has amassed far too much power to avoid any contentious issue for long. As Congress remains deadlocked and the White House melts down, SCOTUS has become the only fully functioning branch of the federal government. It has taken on the role of policymaker, obligated to resolve many of the battles that engulf the political branches. Republicans understand this fact, and it is a key reason why they fought so hard for Kavanaugh’s confirmation. With lawmakers paralyzed, momentous disputes wind up at the Supreme Court. And now, thanks to Kavanaugh’s vote, many of these battles will be decided by a 5–4 conservative majority.

A slew of potentially earthshaking cases has already piled up on the court’s docket for the upcoming term. Multiple transformative decisions will come down in June, thrusting the court into the middle of the 2020 presidential campaign. And the full impact of Kavanaugh’s appointment will become clear as the court is dragged further to the right. This jurisprudential bloodbath will heighten the stakes of the 2020 race, amplifying the power of the president and the role of the judiciary in the most explosive political fights of the day.

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The term will begin with a bang, with oral arguments over whether states can abolish the insanity defense. Four states have outlawed this defense—which allows defendants with mental illnesses to acknowledge their crime but argue a lack of culpability—even though it’s been a universal feature of criminal law for most of American history. Without Justice Anthony Kennedy’s moderating influence on Eighth Amendment jurisprudence, the conservative bloc may bless the abolition of the insanity defense, ensuring that more people with mental illnesses are locked up in prison without access to appropriate treatment.

A day later, the court will hear arguments in three cases that ask whether federal law prohibits employment discrimination against LGBTQ people. Title VII of the Civil Rights Act of 1964 bars workplace discrimination “because of … sex.” And it is impossible to discriminate against LGBTQ people without taking sex into account. Consider an employer who fires a man for marrying a man but does not fire a woman for marrying a man. This discrimination is inherently based on sex: change the male employee’s sex and he wouldn’t be fired. Now consider an employer who fires a trans woman because she is trans. That termination turns on her sex—the fact that she does not identify as a man.

There is another reason why it would be bizarre to subtract LGBTQ employees from federal protections. The Supreme Court has ruled that sex stereotyping—punishing workers for failing to confirm to gender norms—is a form of sex discrimination prohibited under Title VII. Discrimination against gay people rests on the ultimate sex stereotype: the belief that men should only be romantically involved with women, and vice versa. Discrimination against transgender people, too, is rooted in sex stereotyping—a belief that individuals should conform to the sex they’re assigned at birth as well as the attendant gender norms.

Dozens of lower court judges, including numerous Republican nominees, have reached these conclusions with ease. But there is little reason to be optimistic that the new conservative majority will agree. Conservative advocacy groups, including some that supported Kavanaugh’s and Gorsuch’s confirmations, have lobbied against an LGBTQ-inclusive interpretation of Title VII. So, too, have a number of congressional Republicans who endorsed both justices. There is also the possibility that the conservative justices on the bench today hold anti-LGBTQ beliefs that will cloud their analyses of the issue. A 5–4 decision along ideological lines excluding LGBTQ employees from Title VII seems disturbingly probable.

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A week later, SCOTUS will hear arguments in a seemingly dry clash over executive power. In theory, the case asks only whether the Constitution’s appointments clause applies to Puerto Rico’s Financial Oversight and Management Board, which Congress created to restructure the island’s debt. If so, the president must nominate each member of the board and obtain Senate confirmation.

But this case could be a Trojan horse that strips U.S. territories and the District of Columbia of home rule. If the appointments clause applies to the Puerto Rico board, it may also apply to territorial governments more broadly. That would give the president of the United States the power to choose the governors of Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa. He could also select high-ranking executive officials in each territory—as well as the D.C. mayor. Residents of U.S. territories and D.C. could no longer elect their own leaders. If the court hands down a sweeping decision, Trump, facilitated by a GOP-controlled Senate, could seize control over every territorial government.

The next day, the court will hear a dispute over whether states can prosecute immigrants who use false Social Security numbers. Immigrant rights advocates argue that the federal government has sole authority to charge this crime, but red states are trying to seize the power to punish unauthorized immigrants themselves. A few hours later, the justices will take on a case about Lee Boyd Malvo, who was 17 years old when he helped John Allen Muhammad murder 10 people during the “D.C. sniper” shootings. Malvo, who regrets his actions, is serving life in prison, but he has sought resentencing under SCOTUS precedents that sharply limit juvenile life without parole. In Kennedy’s absence, the conservative majority may roll back those decisions and give states leeway to keep juvenile offenders behind bars until they die.

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In November, the hits will just keep coming. On Nov. 12, Trump’s attempt to rescind Deferred Action for Childhood Arrivals, or DACA, will finally come before the court. (The justices punted this case for months last term to avoid deciding it in 2019.) President Barack Obama created DACA to let certain undocumented immigrants brought to the U.S. as children live and work here legally. The Trump administration tried to wind it down—but DACA’s defenders argue that it did so illegally, on the mistaken premise that the program is unlawful. A majority of the court may rule that Trump has discretion to reverse his predecessor’s policy however he wants. It could also take a leap forward and declare that DACA itself is unconstitutional. Either decision would trigger a humanitarian crisis, placing 800,000 Dreamers in danger of deportation.

That same day, the court will hear arguments in Hernández v. Mesa, a truly horrific case. The facts are ghastly: In 2010, a Border Patrol agent shot and killed an unarmed 15-year-old Mexican boy across the border. His family argues that the Constitution’s prohibitions on such police brutality provide them with a right to damages. If the court rules against them, it could strip everyone—citizens and undocumented immigrants alike—of the ability to sue federal law enforcement for misconduct. And recent precedents suggest that the conservative justices are prepared to slam the door on such claims.

One day later, the justices will consider Comcast v. National Association of African American–Owned Media, a potential atomic bomb for race discrimination law. Section 1981, a federal statute first passed in the wake of the Civil War, guarantees racial minorities the right “to make and enforce contracts.”

This rule is expansive: It applies to independent contractors, unlike Title VII, and bars race discrimination in retail, education, and public accommodations. A federal appeals court ruled that, to win under Section 1981, plaintiffs need only prove that race was one factor in their mistreatment. Comcast wants to defang law by requiring plaintiffs to prove “but-for” causation—meaning they would not have faced discrimination but for their race. The conservative justices favor this stringent standard, which would compel plaintiffs to uncover evidence of blatant racism. Since that evidence almost never exists, a decision importing “but-for” causation into Section 1981 could kneecap the law.

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In December, the court will hear arguments in a Second Amendment case for the first time since 2010. It will decide whether New York City’s strict gun laws—which bar residents from traveling with firearms unless they’re going to a city shooting range—is unconstitutional. The court will say it is. In the process, it will bring the right to bear arms out of the home and into the streets, setting the stage for a future decision that creates a constitutional right to public-carry. (New York City has already repealed the law in question and argues that the case should be dismissed; the plaintiffs vigorously disagree.)

When the court returns from the winter holidays, it will hear another landmark case: Espinoza v. Montana Department of Revenue. This case is, at bottom, an effort to force states to fund religious education. The plaintiffs argue that once states subsidize private schools, they must also subsidize parochial schools. It appears that the conservative justices agree with that proposition, even though it directly violates the constitutional separation of church and state. If the court sides with the plaintiffs, the roughly 30 states that use vouchers or tax credits to support private schools would have to open up their programs to religious schools. Taxpayers, by extension, would be compelled to fund the exercise of religion.

Guns, immigration, executive power, police brutality, criminal justice, race discrimination, church-state separation, LGBTQ rights—what other issue could the Supreme Court possibly take on to make this term more incendiary? Ah, yes: abortion, of course! Sometime in 2020, the court will hear June Medical Services v. Gee, a challenge to Louisiana’s targeted regulation of abortion providers (or TRAP law). The state passed a stringent law that compels these providers to obtain admitting privileges at a nearby hospital—a virtually impossible task that provides no health benefit to women. In 2016’s Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down an identical law. Kennedy provided the fifth vote. After he stepped down, the 5th U.S. Circuit Court of Appeals upheld the Louisiana law, defying Whole Woman’s Health. In February, the Supreme Court temporarily blocked the Louisiana law by a 5–4 vote, sparing the states’ clinics, which were prepared to shutter. Chief Justice John Roberts joined the liberals; Kavanaugh dissented.

Roberts likely voted to freeze the law to remind lower courts that they cannot ignore binding precedent. But he dissented in Whole Woman’s Health and is no fan of abortion rights. The Supreme Court will now have to decide whether a constitutional right to abortion access still exists in a post-Kennedy world. Do not expect Roberts to side with the liberals this time around. He may not have wanted the 5th Circuit to overrule Supreme Court precedent. But he may be happy to overturn Whole Woman’s Health himself, giving states the green light to regulate abortion clinics out of existence.

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The justices may prefer to avoid the grimy political arena, but over the next eight months, the court will take center stage. As these decisions come down, the court will inevitably become a flashpoint in the presidential campaign. Liberal voters will demand to know what Democratic presidential hopefuls plan to do about the judiciary, and candidates will embrace court packing with more enthusiasm.

As the new majority launches a conservative revolution in constitutional law, ushered in by Kavanaugh’s elevation to the bench, Democrats will learn, over and over again, how much damage Trump has inflicted on the progressive project. And they will be forced to contend with a wildly powerful judiciary poised to obstruct progressive reforms while shattering liberal precedent. The Supreme Court is not yet in the forefront of the 2020 race. By the time this term is over, traumatized Democrats may struggle to talk about anything else. Perhaps Democrats will espouse a vision of progressivism that is less reliant upon the judiciary for success. They may conclude that it is not healthy for a democracy to depend so extensively on the rule of five justices in Washington.

Update, Oct. 4, 2019: This article has been updated to note that the Supreme Court has agreed to hear June Medical Services v. Gee.