Conservatives’ Supreme Court Dreams Move Closer to Reality

(Bloomberg) -- The sudden U.S. Supreme Court vacancy means that what once were conservative legal fantasies may soon be realistic goals.

Overturning the landmark 1973 Roe v. Wade abortion rights ruling could be just the beginning should President Donald Trump succeed in appointing a successor to the late Justice Ruth Bader Ginsburg. The vacancy could produce the biggest ideological shift of a Supreme Court seat in decades.

Here are some of the top items on conservative wish lists:

Topple Roe v. Wade

Abortion rights were already in doubt before Ginsburg’s death. Although the court in June struck down a law that might have left Louisiana with only one clinic, the 5-4 result hinged on Chief Justice John Roberts, who suggested he would support other restrictions.

Ginsburg’s death means the pivotal vote now belongs to Trump-appointed Justice Brett Kavanaugh, who dissented in the Louisiana case. During his confirmation hearings in 2018, Kavanaugh declined to say whether Roe, which legalized abortion nationwide, was correctly decided or whether he would vote to uphold it as a justice.

Challenges to Roe are already on their way. Conservative states have moved to sharply restrict abortion rights in recent years. States enacted 58 new abortion restrictions in 2019 alone, including a total ban by Alabama, according to the Guttmacher Institute, a research organization that backs reproductive rights.

Kill Obamacare

The court is scheduled to hear arguments on the Affordable Care Act a week after the election. The Trump administration is urging the court to declare the law invalid, including its protections for people with pre-existing conditions.

The law had looked to be in solid position. The Supreme Court upheld the core of the law in 2012 and -- until Ginsburg’s death -- all five justices in the majority of that ruling were still on the court. Prospects for the law are now far less certain.

Broaden Gun Rights

The Supreme Court has frustrated conservatives over the last decade by refusing to take up a major Second Amendment case. Four conservative justices -- Clarence Thomas, Samuel Alito, Neil Gorsuch and Kavanaugh -- have indicated they want the court to be more aggressive in taking up gun-rights cases.

A more conservative majority could enshrine a constitutional right to carry a handgun outside the home and strike down bans on semiautomatic assault weapons and large-capacity magazines.

End Affirmative Action

A federal appeals court heard arguments this week in a Harvard University case that could end race-conscious admissions at colleges. That case could reach the Supreme Court next year.

Ginsburg was part of a 5-4 majority that upheld university affirmative action in 2003. Affirmative action was already in jeopardy with Ginsburg on the court. It’s probably doomed if a Trump appointee takes her seat.

Slash Regulation

Trump’s first two Supreme Court appointees, Gorsuch and Kavanaugh, favor cutting the power of administrative agencies to interpret ambiguous statutes. Another conservative could tip the balance.

That could give future Democratic administrations considerably less power to issue environmental and consumer-protection regulations without turning to Congress.

A more conservative court could even question the 1935 ruling that laid the legal groundwork for the modern administrative state by upholding the independent structure of the Federal Trade Commission. The court in that case ruled the president couldn’t remove a commissioner for reasons other than those specified by Congress. Overturning that ruling would endanger the independence of other agencies, most notably the Federal Reserve Board.

Ease Church-State Divide

Conservatives have been pushing on multiple fronts. They would give people broad rights to claim religious exemptions from anti-discrimination laws, afford public schools more leeway to encourage prayer and let governments direct more tax dollars toward churches.

Gut the Voting Rights Act

In 2013 the Supreme Court undercut a key part of the 1965 Voting Rights Act, which protects racial minorities at the polls. The 5-4 ruling centered on Section 5, which required jurisdictions with a history of discrimination to get federal clearance before changing their voting rules. The decision left Section 5 inoperable by striking down the formula for determining which states are covered.

Conservatives are eyeing another prize: Section 2, which lets voters and the federal government sue over discriminatory election practices. Conservative advocates have argued that Section 2 can’t constitutionally be applied in the absence of intentional discrimination. And Justices Thomas and Gorsuch have said the provision can’t be used to challenge redistricting maps.

Empower Trump

Roberts has served as an occasional restraining force on Trump, blocking him from adding a citizenship question to the Census and from ending the DACA deferred-deportation program. Should Trump appoint Ginsburg’s successor -- and win re-election -- the court would probably become even more deferential to his claims of presidential power.

During Trump’s first term, he pressed the court for sweeping power to restrict entry into the country and to reallocate appropriated funds to build his Mexican border wall. He also sought to shield his financial documents from congressional and state investigators.

©2020 Bloomberg L.P.