What Will Change?
I’m preparing a handy-dandy table of what one could expect from the Supreme Court if John Roberts is confirmed, and turns out to be the solid conservative everyone (OK, maybe not quite everyone) thinks he is, and if all the recent hot-button issues end up before the court again (the last is a big “if,” but work with me). It’s a work in progress, which I intend to update as warranted, hopefully in large part from users’ comments – particularly those who know something about Judge Roberts that might shed more light on my guesses (which, in their current form, simply assume that he does the standard “conservative” thing every time). Think of it as an almost-Wiki in that regard: you can submit edits, it’s just that the may or may not end up in the document.
| Abortion (first trimester) | Still a “constitutional” right. | Remember those lies you’ve endured from feminists over the past decade about how we were “one vote away” from overturning Roe v. Wade? Well, all those lies finally came true, but no matter. Close only counts with horseshoes and hand grenades, not Supreme Court decisions, so we’re right back where we were in Planned Parenthood of Southeastern Pennsylvania v. Casey. | |
| Abortion (hiring doctors to poke open half-born babies’ skulls) | No longer a “constitutional” right. | In Stenberg v. Carhart, a.k.a. Roe on steroids, the Supremes ruled 5-4 in favor of partial-birth abortion. Now, it’s probably 5-4 the other way. | |
| Sodomy | Still a “consitutional” right. | Lawrence v. Texas was a 6-3 decision, so if the issue came before the court again it would be 5-4 now. And the chances of it coming before the court are essentially nil anyway. Legislatures have better things to do than re-enact uncommonly silly laws that were well on the way out before the Supremes unwisely stepped in in the first place. | |
| Establishment Clause | Historical display of Ten Commandments OK | When the Supremes split this baby, Justice Breyer was the wildcard, with Justice O’Connor voting against both displays. A conservative would have no problem with these displays, turning the the four vote plurality in Van Orden v. Perry and the four vote minority in McCreary County v. ACLU of Kentucky into clear 5-4 majorities in both cases. | |
| Freedom of Expression (flag burning) | Probably still a constitutional right. | Texas v. Johnson was a 5-4 decision, with Justice O’Connor among the dissenters, so incoming Justice Roberts won’t upset that balance except possibly to create a 6-3 majority. However, there have been four other personnel changes since 1989, so Lord only knows how the court would come down if the issue were revisted today, even if we assume that Justices Kennedy and Scalia would still support the ruling, and that Justices Rehnquist and Stevens would still oppose it. | |
| Freedom of Expression (political speech) | McConnell v. FEC, the infamous 2003 case upholding the McCain-Feingold “reforms,” split many different ways on many different issues, but was 5-4 on the one that counted, with Justice O’Connor as the turncoat. Now the First Amendment enjoys a 5-4 majority instead of a 4-5 deficit. Isn’t that special? | ||
| Right to Arm Bears | None. | Four Justices are strict constructionists who can’t find anything in the Constitution about bears, and a fifth doesn’t care about the issue because |
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| Right to Bear Arms | LFI no. | The Supremes haven’t touched the issue since the 1939 case of U.S. v. Miller, and were pretty cryptic about it even then. Justices Scalia and Thomas have made their support clear, and the entire Court implied in dicta that it endorsed the commonsense interpretation (i.e., that guns are “arms,” people are “people” and allowing a government to possess guns of its own is not the same thing as “keeping” or “bearing” them yourself) in U.S. v. Verdugo-Urquidez, a Fourth Amendment case. Justices Rehnquist and Roberts would likely follow suit, but that makes four, not five. Regarding the lack of an international consensus in favor of an armed citizenry see above. | |
| Eminent Domain | Anything the government wants to do is a “public use.” | Unfortunately, Justice O’Connor was among the dissenters in Kelo v. New London, so the best we can hope for in Roberts’s case is to tread water until Justice Stevens or Ginsburg retires. | |
| Death Penalty | Unchanged. | Roper v. Simmons, the case barring executions of minors, was a 5-4 decision, with O’Connor among the dissenters, so replacing her with a solid conservative will not affect that ruling. She was part of the majority in Atkins v. Virginia, which barred states from executing the mentally retarded. That case was 6-3, however, so the appointment of one solid conservative in her place will not be enough to overrule it. | |
| States’ Rights (General) | What states’ rights? | The Tenth Amendment will remaing meaningless, or at least almost meaningless, until the infamous 1942 case of Wickard v. Filburn is scaled back or, preferably, overruled outright. That’s still a long shot, and probably an impossibility without at least one more personnel change – and I don’t mean replacing Justice Rehnquist. | |
| States’ Rights (Weed) | Dude, I’m too baked to even know what a state is, right? | Same as above, only worse in light of Justice Scalia’s hair-splitting in Gonzales v. Raich. | |
| Sovereign Immunity | No change | Who the *&^% really cares about this issue anyway?! | |
| Privileges and Immunities | Tell me and we’ll both know. | This one’s probably still a long shot, but another conservative on the court is a move in the right direction. | |
| Due Process (tort damages) | No change. | It is rare for courts to impose tort reform as a constitutional measure, but it does happen on occasion. One such occasion was the seminal case of BMW v. Gore, a 5-4 case that reduced the obscenely high punitive damages that a jury had imposed on BMW for secretly repainting cars. While this decision may be more popular among tort reform-minded conservatives than among corporate-bashing liberals, the makeup of the court was exactly reversed, with Justice O’Connor siding with the pro-business liberals. However, one of the dissenters in Gore, Chief Justice Rehnquist, changed his vote in the more recent case of State Farm v. Campbell, so if Roberts votes with the other conservatives it will still be 5-4 in favor of some constitutional limits on non-compensatory tort damages. Nevertheless, most tort reform will have to come from the legislature. | |
| Equal Protection (benefits for illegals) | No change – but that’s probably OK. | You may recall that when Prop 187 passed handily in 1994, it was immediately challenged in court and struck down by the Ninth Circuit, which largely followed the U.S. Supreme Court ruling of Plyler v. Doe, in which Justice O’Connor dissented. Unfortunately, the legal challenge moved at a snail’s pace, so by the time the Court of Appeal had issued a final, appealable ruling, a new anti-187 administration let it drop. Had they appealed then, they probably would have prevailed, the only wildcard being Justice Kennedy. Since Justice Roberts is replacing a Doe dissenter, the generally favorable odds of Doe’s reversal are unchanged. | |
| Equal Protection (reverse discrimination) | Probably unconstitutional. | The Supremes split the baby in Gratz v. Bollinger and Grutter v. Bollinger two years ago, ruling that obvious, undeniable quotas are unconstitutional (Gratz) but vaguely subtle ones will not be until 2028 (Grutter). Grutter was 5-4, with Justices Breyer and O’Connor as the baby-splitters. If the issues present in Gratz and Grutter come up before the court again, Grutter will likely be overturned, and Gratz will likely be re-affirmed by the same margin as before. Also note that Justice O’Connor was part of the 5-4 majority in Hunt v. Cromartie, a 2001 case that upheld the right of legislatures to gerrymander districts according to race. That case would likely be overruled as well. | |
| Mail-Order Wine | Still a constitutional right, unless it isn’t. | Granholm v. Heald was a 5-4 decision, with Justice O’Connor among the four dissenters. There were no left/right patterns among the Justices on this case, so attempting to predict incoming Justice Roberts’s position on the 21st Amendment is a fool’s errand. It doesn’t matter anyway; if he votes like Justice O’Connor, it’s still a 5-4 ruling; if he doesn’t, it’s 6-3. But if your state prohibits shipping of wine from in-state distributors as well as out of state, this case won’t help you anyway. |
UPDATE: Lots of good ideas in the comments. Keep ‘em coming. I’m constantly updating the grid accordingly.
