Constitutional Law Is About to Get an Overhaul

(Bloomberg Opinion) -- At the outset of the most contentious Supreme Court confirmation battle in modern American history, Senator Ted Kennedy said the following:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.

That was hyperbolic, to say the least, but it was also effective; it signaled the magnitude of the stakes. Bork’s nomination in 1987 was defeated, and Anthony Kennedy — a far more moderate judge — was confirmed instead.

Now Kennedy is retiring and the confirmation battle for his successor may well turn out to be the most contentious since Bork’s. The stakes may be even higher. An initial step is to lay them out — fairly and without hyperbole.

If President Donald Trump chooses to replace Kennedy with someone like his first selection, Justice Neil Gorsuch, how is the law likely to shift?

Privacy: Kennedy provided a critical vote to preserve a woman’s right to have an abortion, which had been recognized by the court in 1973 in the Roe v. Wade case. He also wrote the court’s 2015 opinion in Obergefell v. Hodges, requiring all states to recognize same-sex marriage.

Trump’s nominee is likely to think that both Roe and Obergefell were wrongly decided. But would he or she respect them as precedents?

My best guess is that Roe would be in serious jeopardy. Because it has not created the same kind of intense backlash, Obergefell is probably more secure, but no one should be shocked if it is overruled.

In the future, some of the most important privacy cases will involve surveillance. This term, the court ruled, 5 to 4, that the Fourth Amendment’s safeguard against “unreasonable searches and seizures” protects people’s right not to disclose to the government personal-location information stored by wireless phone carriers.

The narrow ruling left open the question whether and when the Fourth Amendment protects information held by third parties (such as financial records held by a bank, or records of dialed telephone numbers). In such cases, Trump’s nominee is likely to provide the fifth vote in favor of the government.

Voting rights: For many years, the court has left open the question whether it will strike down partisan gerrymandering, the practice of drawing voting-district lines to entrench the power of one or another political party. Four justices seem prepared to rule that courts should stay out of that thicket — and thus decline to forbid that kind of gerrymandering. A Trump nominee would probably join them.

States often create obstacles to the right to vote, sometimes in the form of complex registration requirements, sometimes through laws that remove people’s names from state voting rolls. The Court narrowly upheld one such deregistration law this month. A Trump nominee would probably give states considerable room to make their own decisions with respect to both registration and deregistration.

Freedom of speech: In 2009, in one of the most controversial free-speech decisions in the last 50 years, the court ruled in the Citizens United case that the Constitution forbids government from restricting independent expenditures by corporations on political campaigns. A Trump nominee would probably embrace Citizens United and might well go further.

For example, Justice Clarence Thomas has argued that disclosure and reporting requirements for political donations are unconstitutional. Five justices might be prepared to move in his direction.

In recent years, some of the justices have come pretty close to saying that commercial speech is entitled to the same level of protection as political dissent. That would radically reorient constitutional law.

Restrictions on misleading and deceptive advertising could be drawn into question. At the same time, disclosure requirements imposed on corporations by the Securities and Exchange Commission, the Department of Labor, the Federal Trade Commission, and other agencies would become constitutionally vulnerable.

For example, a lower court recently struck down a federal regulation requiring companies to state whether their products contain “conflict minerals,” meaning materials used to finance mass atrocities. The Supreme Court would probably agree. It might go much further.

Equality: By a narrow margin, the Supreme Court has declined to forbid affirmative action programs. For example, it allows university admissions offices to consider race as a “plus,” if their goal is to produce a diverse student body.

With another Trump appointee, there is a good chance that the Court would forbid all affirmative action.

The federal civil rights statutes contain a host of ambiguities. It is safe to say that in the face of those ambiguities, African-Americans, women and disabled people will be in a weaker position than they would otherwise be.

The administrative state: Some of the justices have been keenly interested in questioning the constitutional position of administrative agencies. The objections are multiple: They have too much discretionary power; they are not sufficiently controlled by the president; they exercise powers of adjudication that are properly the province of federal courts; they intrude on the authority of the states; they violate rights of private property.

No one should be surprised if the Occupational Safety and Health Act now receives serious constitutional scrutiny. Parts of the Endangered Species Act and the Clean Air Act may well be vulnerable.

It’s important to maintain a sense of perspective. No imaginable change in the composition of the Supreme Court would mean that “blacks would sit at segregated lunch counters” or that “schoolchildren could not be taught about evolution.”

But a great deal turns on Trump’s choice — and on how the Senate reacts to it. More than at any time in decades, it looks as if fundamental principles of constitutional law are in for a serious overhaul.

©2018 Bloomberg L.P.