How the Supreme Court’s 'emboldened' hard-right majority will dramatically reshape the US — and not for the better
Although Republicans have lost the popular vote in seven of the United States’ last eight presidential elections, the U.S. Supreme Court doesn’t begin to reflect that. Six of the nine justices were appointed by Republican presidents, including three Donald Trump appointees: Justice Amy Coney Barrett, Justice Brett Kavanaugh and Justice Neil Gorsuch. The High’s right-wing majority is almost certain to overturn Roe v. Wade, but as an in-depth essay/op-ed by Washington Post opinion writer Ruth Marcus explains, Roe is only the tip of the iceberg when it comes to the ways in which that majority will reshape life in the U.S. in the months to come — and not for the better.
Marcus opens her essay/op-ed, published on November 28, by noting what the late Supreme Court Justice William J. Brennan, Jr., had to say about a six-justice majority versus a five-justice majority. A six-justice majority, according to Brennan, feels more “emboldened.” And the GOP gained a six-justice majority when liberal Justice Ruth Bader Ginsburg, a Bill Clinton appointee, died in 2020 and was replaced by the far-right Barrett.
“A five-justice majority is inherently fragile,” Marcus explains. “It necessitates compromise and discourages overreach. Five justices tend to proceed with baby steps. A six-justice majority is a different animal…. The pathways to victory are enlarged. The overall impact is far greater than the single-digit difference suggests.”
Marcus continues, “On the current Court, each conservative justice enjoys the prospect of being able to corral four colleagues, if not all five, in support of his or her beliefs, point of view or pet projects, whether that is outlawing affirmative action, ending constitutional protection for abortion, exalting religious liberty over all other rights or restraining the power of government agencies. A six-justice majority is emboldened rather than hesitant…. A conservative justice wary of providing a fifth vote for a controversial position can take comfort in the thought that now there are six; there is strength in that number.”
Chief Justice John Roberts, Marcus observes, now “occupies what passes for this Court’s center” and “holds the reins but is no longer firmly in control of his horses.” The High Court, according to Marcus, now has a “membership that has not been this conservative since the 1930s.”
The High Court, Marcus notes, has had a majority of “Republican appointees…. for half a century, since President Richard M. Nixon named Warren E. Burger to be chief justice in 1969, after Earl Warren’s retirement.” But many GOP appointees of the past, Marcus writes, were more nuanced than the GOP majority of 2021.
“Over time, and under the tutelage of the conservative Federalist Society, Republican presidents, beginning with George W. Bush and intensifying with Trump, became better at picking reliably conservative justices,” Marcus observes. “There were to be no more David Souters, who turned out to be a solid liberal vote; no more Sandra Day O’Connors, whose background as an Arizona state legislator often inclined her to compromise; no more Anthony M. Kennedys, the pale-pastel conservative named to the Court after Ronald Reagan’s first choice, Robert H. Bork, was resoundingly defeated.”
Given how much is at stake, some critics of the High Court’s right-wing majority have proposed expanding the Court to 11, 12, 13 or more justices, or imposing judicial term limits. Some democracies appoint justices to ten-year terms. But Marcus isn’t enthusiastic about either idea.
“Some treatments, like court-packing, would be worse than the disease,” Marcus argues. “Others, like imposing term limits, are harder to administer and wouldn’t be effective for years. Which means: The Court is where it is. The Rule of Six is now in force. Conservatives have time to write their views into the law books, where they will remain for decades to come. The change they choose to enact will be swift or slow; it will be open or stealthy. But make no mistake: It is coming. The Court, and the nation, will be worse off for it.”
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