Beyond Abortion: What’s at Stake With a Right-Wing Court
Amy Coney Barrett’s nomination to the highest court could spell bad news for LGBTQ equality, voting rights, and health care
Somehow, with the election less than a month away and Capitol Hill still reeling from a recent Covid-19 outbreak, Judge Amy Coney Barrett’s first Supreme Court confirmation hearings are set to begin today. Assuming the Senate votes to confirm Barrett — a woman who’s been described as an ideological heir to Justice Antonin Scalia — conservatives will take a 6–3 majority on the Supreme Court, giving the U.S. its most right-wing Court since 1950.
A conservative Supreme Court could rewrite the law around a number of issues, including reproductive rights, voting rights, health care, and law enforcement immunity. Below is a snapshot of what’s at stake with Barrett’s nomination.
Conservatives’ biggest goal has long been to overturn Roe v. Wade. Even if Roe itself isn’t overturned, a 6–3 court would likely vote to let stand any abortion restrictions that come under its consideration, including bans on abortion after 12 weeks or that involve the use of certain procedures. At present, more than 15 cases related to reproductive rights are moving between the lower courts; they include issues such as the requirement that fetal tissue be buried and that an abortion-seeking minor obtain parental consent. Taken together, these issues would chip away at a woman’s reproductive rights, even if not explicitly overturning Roe. Just read what Barrett herself said in 2016: “I don’t think the core case — Roe’s core holding that, you know, women have a right to an abortion — I don’t think that would change,” Barrett said. “But I think the question of whether people can get very late-term abortions, you know, how many restrictions can be put on clinics — I think that would change.”
Oral arguments for California v. Texas, the case challenging the Affordable Care Act, are scheduled for November 10. Texas centers on the 2017 amendment to the ACA that essentially repealed the law’s individual mandate requiring that Americans either pay for health insurance or pay a penalty tax. That same year, Trump signed a tax law reducing that penalty to zero dollars, and now the plaintiffs — 18 states with Republican governors or attorneys general — are arguing that a mandate of zero dollars is unconstitutional and that, if the SCOTUS justices agree, due to a legal term known as “severability,” the whole law must then be shelved. (Simply put, severability asks whether a clause — in this case, the individual mandate — is so essential to a law that if that part is stricken, the whole piece of legislation can no longer stand.)
Federal Housing Finance Agency
Collins v. Mnuchin, a case the Court is scheduled to hear in December, piggybacks on last year’s Seila Law v. Consumer Financial Protection Bureau SCOTUS ruling, which determined that it is unconstitutional for the leader of a congressionally created agency to be exempt from removal by the president. Collins involves the Federal Housing Finance Agency (FHFA), an agency that was created in 2008 and is overseen by one person whose job title protects them from being fired by the president. The FHFA director, Mark Calabria, will most likely be stripped of these protections, which means Biden, if elected, could fire him. But, the plaintiff’s claim goes further, citing Siela Law to say that “everything the FHFA has done since its inception is void because it was an unconstitutionally structured agency.” In effect, as Vox’s Ian Millhiser explains, “a dozen years’ worth of federal actions could potentially be vacated.”
Fulton v. City of Philadelphia, Pennsylvania, which the Court is scheduled to hear in November, centers around the question of whether a government contractor has the right to refuse service to same-sex couples. In a nutshell, the city of Philadelphia stopped working with a private agency, Catholic Social Services (CSS), which screened potential foster parents, after a 2018 article in the Philadelphia Inquirer revealed that CSS refused to work with same-sex couples. The city said CSS had breached its contract, which had a clause prohibiting sexual-orientation-based discrimination. Should the Supreme Court rule in favor of CSS, it would mean that the government can’t ban its contractors from discrimination.
The court is scheduled to hear arguments for Brownback v. King in November, a case whose plaintiff, 21-year-old James King, was mistaken by plainclothes police as a criminal suspect. The officers allegedly beat and choked King to the point of unconsciousness. As harrowing as the details of the case are, its implications could be just as terrifying. King, the plaintiff, is trying in Brownback to make a claim against the officers, and to do so, he needs to navigate a previous ruling, 1971’s Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which determined that federal officers could be sued for violating a person’s constitutional rights. The Court no longer views its predecessors’ Bivens ruling in such a favorable light, and recent SCOTUS rulings suggest it would jump at an opportunity to essentially rescind Bivens entirely. That’s where King’s Brownback suit comes into play: Essentially, the Court has to determine whether King is justified in pursuing a claim against the officers, and if it sides against King, it could overrule the initial Bivens ruling, meaning that civilians have far less recourse against violent officers.
A 6–3 court will likely gut what’s left of the Voting Rights Act, allowing Republican-led states to pass measures to restrict voting in a way that helps the party retain power. As Ari Berman wrote in the Washington Post, “the long lines, rejected mail-in ballots and voter confusion that defined the primary season could become the new normal in American politics.” (To see how the Court has helped Republicans gut voting rights in recent years, look at its rulings that allowed GOP-led Ohio to remove voters from rolls for skipping elections and said federal courts couldn’t review gerrymandered electoral maps that helped Wisconsin lawmakers retain electoral power despite lagging in the vote totals.) When the Court eventually takes up, say, Arizona Republican Party v. Democratic National Committee, in which the plaintiff alleges that Arizona state laws imposing criminal penalties for assisting with ballot collection amount to voter discrimination, it may well rule to further limit voting access in America.