What A 6-Vote Majority Would Mean For The Supreme Court

Law360 (September 26, 2020, 5:57 PM EDT) -- If confirmed by the Senate, Seventh Circuit Judge Amy Coney Barrett would give conservatives six votes on the U.S. Supreme Court and clear the way for broad Republican victories in the areas of affirmative action, abortion and more, experts say.

In 2018, conservatives won their strongest Supreme Court majority in years when President Donald Trump appointed Justice Brett Kavanaugh to succeed Justice Anthony Kennedy, a Republican appointee who over the years frequently voted with the liberal justices on issues like reproductive freedom and LGBTQ rights.

Now they have the chance to expand their grip on the nation's top court by replacing the late Justice Ruth Bader Ginsburg, long the leader of the court's liberal wing, with a 48-year-old conservative in Judge Barrett.

Legal experts say Judge Barrett's confirmation would bring a sea change in the law, with a newly invigorated conservative majority moving quickly to dismantle or undermine the court's precedents on social issues.

"It would likely mean that we're going to see constitutional law shift to the right," said Adam Winkler, a professor at the UCLA School of Law. "We're likely to see the rights of women to choose abortion, the rights of unions to organize and be politically active, and the rights of LGBT minorities minimized. In contrast, we're likely to see the rights of religious people, the rights of gun owners, the rights of businesses expand."

Having six Republican appointees on the Supreme Court is nothing new, and in fact, Republican appointees have outnumbered Democratic appointees for decades.

Before Justice Stephen Breyer joined in 1994, Justice Ginsburg was the sole Democratic appointee on the court. Yet many of those Republican appointees, such as Justices John Paul Stevens and David Souter, became reliable liberal votes over the course of their tenures. As a result, Republicans have made it a mission to appoint justices to the high court that won't go their own way on some of the biggest issues, and Judge Barrett, a longtime Federalist Society member with a strong record of conservative writings, is expected to fit the bill.

"The last time there was six right-of-center justices? It really hasn't happened in the modern era," said George Mason University law professor Ilya Somin.

In the two years since Justice Kavanaugh replaced Justice Kennedy, the court's 5-4 conservative majority has turned out to be weaker than expected. The 2019 term was particularly disappointing to conservatives after the court struck down a Louisiana abortion law, extended civil rights protections to LGBTQ workers and ruled against Trump in a case over access to his financial records.

Chief Justice John Roberts has emerged as a swing vote in many recent cases. His institutionalist leanings often lead him to join with his liberal colleagues to protect the image of the court in the eyes of the public.

With the likes of Judge Barrett on the Supreme Court, however, Justice Roberts would now be in the minority should he join the liberal wing of the court in contentious cases.

"[Conservatives] can afford to lose one person and still prevail," Somin said. "That's a big edge."

Indeed, Judge Barrett is expected to bring to the court a brand of steadfast conservatism similar to that of justices Clarence Thomas, Samuel Alito and Neil Gorsuch. It will likely then be up to Justice Kavanaugh in many cases to determine how far to the right the court moves in many cases.

Winkler noted that Justice Antonin Scalia's landmark Second Amendment ruling in Heller v. District of Columbia , which recognized an individual right to gun ownership, nevertheless included passages that acknowledged the legality of some forms of gun control. Those passages, likely put in at the insistence of Justice Kennedy to secure his vote, "watered down the effect of the opinion," Winkler said.

With Judge Barrett on the court, there will no longer be anyone to play that role, Winkler said.

"I expect that you're going to have that conservative majority push its vision of the law very aggressively without the need for compromise," he said.

And some say the presence of a sixth conservative vote on the Supreme Court could actually make Justice Roberts less concerned about the optics of a conservative ruling.

"It's much less of an institutional problem to be on the side of a 6-3 [decision] that overrules a precedent than to be on the side of a 5-4 [decision] to overrule a precedent," said William Araiza of Brooklyn Law School. "It seems like the abortion right is obviously in very serious trouble. Whether that happens in one fell swoop or whether it happens through 1,000 cuts, we don't know that."

Not since Justice Thomas succeeded the pioneering civil rights lawyer Justice Thurgood Marshall has a Supreme Court seat swung so dramatically as it is expected to should Judge Barrett be confirmed; indeed, Justice Ginsburg was compared to Justice Marshall throughout her career for her success taking on sex discrimination in the law in the 1970s.

The justice, who died Sept. 18 from cancer, was an icon to the progressive left, and Trump's move to quickly replace her has enraged liberals. An increasing number of activists, lawmakers and groups have encouraged Democrats to embrace the idea of packing the court as a way to undo Trump's takeover of the Supreme Court if they regain power.

That's why Somin is quick to point out that any effect Judge Barrett would have on the direction of the law "assumes that it will not quickly be removed by a Democrat court-packing plan or another political maneuver."

--Editing by Brian Baresch and Emily Kokoll.

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