TOWLERROAD.COM September 24, 2020 – If the late Justice Ruth Bader Ginsburg is replaced this year, the Supreme Court will become something the country has not seen since the justices became a dominant force in American cultural life after World War II: a decidedly conservative court. A court with a 6-3 conservative majority would be a dramatic shift from the court of recent years, which was more closely divided, with Ginsburg as the leader of the liberal wing of four justices and Chief Justice John Roberts as the frequent swing vote.
As a scholar of the court and the politics of belief, I see three things likely to change in an era of a conservative majority: The court will accept a broader range of controversial cases for consideration; the court’s interpretation of constitutional rights will shift; and the future of rights in the era of a conservative court may be in the hands of local democracy rather than the Supreme Court.
The court takes only cases the justices choose to hear. Five votes on the nine-member court make a majority, but four is the number required to take a case. If Roberts does not want to accept a controversial case, it now requires all four of the conservatives – Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas – to accept the case and risk the outcome. If they are uncertain how Roberts will rule – as many people are – then the conservatives may be not be willing to grant a hearing.
With six conservatives on the court, that would change.
More certain of the outcome, the court would likely take up a broader range of divisive cases. These include many gun regulations that have been challenged as a violation of the Second Amendment, and the brewing conflicts between gay rights and religious rights that the court has so far sidestepped. They also include new abortion regulations that states will implement in anticipation of legal challenges and a favorable hearing at the court. The three liberal justices would no longer be able to insist that a case be heard without participation from at least one of the six conservatives, effectively limiting many controversies from consideration at the high court. (Read More)