Roe demise shows conservative Supreme Court wants to move 'very far and very fast,' law professor says
(The Hill) – It was clear a Supreme Court with six conservative justices was going to move to the right. It just wasn’t clear how far it would go or how fast.
On Friday, the picture came into focus as the high court’s supermajority issued a landmark decision erasing the nearly 50-year-old constitutional right to abortion by overturning Roe v. Wade.
A day earlier, the court enshrined a right to carry a handgun in a ruling striking down New York’s concealed carry permit law. Earlier in the week, it issued another ruling expanding religious liberty.
The decisions, which drew scorn from the court’s three liberals, represented a giant leap for the conservative cause, offering the clearest sign yet of just how aggressively the six Republican-appointed justices are willing to drive the Supreme Court to the right.
The shockwaves also underscore just how much the court has shifted since Senate Minority Leader Mitch McConnell (R-Ky.) blocked former President Obama’s final pick from making it to the court, and then quickly pushed through three nominations from former President Trump.
And the decisions suggest the court doesn’t want to waste time.
“The 6-3 majority feel that they have a narrow window to do all the things important to the conservative legal movement,” said Robert Tsai, a law professor at Boston University. “You never know when the window will close and so they are acting with urgency.”
This week marked a breakthrough moment for the conservative legal movement’s well-funded and norm-shattering effort to groom a generation of conservative lawyers, elevate reliable allies to the Supreme Court and reshape American life in fundamental ways.
For decades, Roe v. Wade had been in conservative cross hairs, with Republican Party elites seizing on the issue of abortion to unify social conservatives and evangelical Christians. Friday’s toppling of the landmark 1973 ruling marked a crowning achievement that left abortion opponents electrified.
“Today, Life Won,” said former Vice President Mike Pence, who campaigned as Trump’s running mate in 2016 on the promise to end the federal right to abortion. “By overturning Roe v. Wade, the Supreme Court of the United States has given the American people a new beginning for life and I commend the Justices in the majority for having the courage of their convictions.”
But the decision, which most Americans said they would oppose, also ignited a political firestorm as the dismantlement of abortion rights began to unfold in states within hours of the ruling. As women across the country find themselves barred from terminating an unwanted pregnancy, court watchers said, public confidence in the Supreme Court that is already at historic lows is likely to sink further.
“I think that the sense that court consists of Republicans and Democrats, conservatives and liberals, is accurate and growing,” said Michael Dorf, a law professor at Cornell University.
The Supreme Court’s overturning of Roe effectively handed states the authority to drastically limit or ban abortion. More than two dozen states, primarily in the South and Midwest, are expected to tighten abortion access as a result, including 13 with “trigger bans” that were set to take effect automatically or through minimal effort by state officials.
The court’s liberal trio of Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor, in a blistering 66-page dissent, condemned their conservative colleagues.
“With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent,” they wrote.
The court’s conservatives sent mixed messages Friday about how broadly their actions might be going forward.
Writing for the majority, Justice Samuel Alito emphasized that his ruling was narrowly aimed at abortion. He insisted the decision would not threaten protections for same-sex marriage (Obergefell v. Hodges), sex between gay couples (Lawrence v. Texas) or the right to contraception (Griswold v. Connecticut).
But Justice Clarence Thomas, in a concurring opinion, wrote that the reasoning underlying Friday’s opinion should call those other decisions into question. Thomas has long rejected the well-established principle that the Due Process Clause of the 14th Amendment protects not only procedural safeguards but also substantive rights.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote. “Because any substantive due process decision is demonstrably erroneous, we have a duty to correct the error established in those precedents.”
Legal experts said the ruling raised legitimate questions about whether rights that are seen as having a thin historical record and which are not explicitly referenced in the Constitution — so-called unenumerated rights — remained on firm footing after Friday’s decision.
Just a day earlier, Thomas wrote the majority opinion striking down a New York state law that made it difficult to obtain a permit to carry a handgun outside the home.
The ruling broke along ideological lines, with the court’s conservatives joining Thomas, who wrote that the Second Amendment protects “an individual’s right to carry a handgun for self-defense outside the home.”
That decision will almost certainly render unconstitutional similar restrictions in more than a half dozen other states and could hamper efforts to pass modern gun control measures.
“This is an enormously broad opinion with regard to Second Amendment methodology,” said Joseph Blocher, a law professor at Duke University.
“Here, the majority has essentially rejected the approach unanimously adopted by the federal courts of appeals in favor of a hyper-originalist focus on whether contemporary gun laws are, in the court’s view, consistent with tradition,” he said. “And that is a big, big change.”
Earlier this week, the justices in another 6-3 vote struck down a Maine education policy that made schools with religious instruction ineligible for taxpayer-backed tuition aid. The ruling continued the conservative majority court’s general trend of ruling for religious interests.
Chief Justice John Roberts, writing for the majority, held that a tuition fund program that is available to secular schools must also be made available to religious schools.
Sotomayor, the Supreme Court’s most outspoken liberal, accused the court’s conservatives in a dissent of “dismantling” the barrier between church and state.
Katherine Franke, a law professor at Columbia University, said the decision had far-reaching implications for religious liberty rights. Prior to Tuesday’s ruling, she said, a state choosing not to fund a religious organization was generally considered a lawful form of neutrality.
“Now, inaction counts as discrimination,” she said. “This idea developed 30 years ago — that not funding religion is a form of discrimination against religion. It’s taken a while for that idea to get traction, and it’s now the law of the land.”
As the nation reckoned with a country undergoing transformational changes at the hands of six life-tenured judges, some longtime court watchers said this week was a stark illustration of a Supreme Court aggressively pursuing conservative agenda items.
“The decisions this week must be understood as a conservative majority favoring conservative political ideology: requiring aid for religious instruction, greatly expanding gun rights, ending abortion rights,” said Erwin Chemerinsky, dean of the University of California Berkeley School of Law.
“It is not about judicial philosophy or constitutional interpretation,” he said. “It is about conservatives moving constitutional law very far and very fast in a very conservative direction.”