Why Democrats fear a conservative supermajority

Chief Justice John Roberts and Associate Justices Stepehn Breyer, Neil Gorsuch, Elena Kagan, Brett Kavanaugh, Clarence Thomas, and Samuel Alito. Source.

The recent passing of Justice Ruth Bader Ginsburg has caused concern among Democrats that the Supreme Court will be increasingly conservative. Currently, the Court has three “liberal” justices and five “conservative” justices—the terms “liberal” and “conservative” denoting the parties by which the justices were nominated.

Democrats fear decisive policies could be jeopardized if the Court moves to a 6-3 conservative majority and landmark cases such as Roe v. Wade would potentially be reversed. However, unlike politicians, the Court is nonpartisan. Furthermore, the Court is conscious of its public perception and would not want to jeopardize it. Chief Justice John Roberts likes to maintain the “status quo” which includes limiting reversals. In fact, Roberts’ Court has been less willing to overturn precedent than previous courts. 

Before hearing a case, four justices need to agree to issue a writ of certiorari, and to issue a ruling, five justices are needed. The Supreme Court has maintained a conservative majority for years and have refrained from reversing cases such as Roe v. Wade. In fact, they have continued to uphold cases dealing with abortion rights, including this year with June Medical Services v. Gee. The Court holds to a philosophy known as “stare decisis” or “let the decision stand” which means they are less inclined to reverse past decisions. Although not required to, they are generally reluctant to reverse decisions as a matter of protecting the integrity of the Court.

Regardless of who replaces Justice Ginsburg, it would be highly unlikely that Roe v. Wade would be reversed. However, there is a possibility that cases dealing with abortion can reach the Court and limit the protections provided by the case. Already there have been three key cases Planned Parenthood v. Casey, Whole Women’s Health v. Hellerstedt, and June Medical Services v. Gee which have upheld Roe v. Wade and in each case a conservative justice was in the majority. 

The reason many fear the reversal of Roe v. Wade is that abortion rights would no longer be a federal standard, and states are free to limit or outlaw abotion procedures as they please. However, it is important that people understand the Court is a nonpartisan entity and justices don’t always rule in favor of their “side”. In fact, Justices Sandra Day O’Connor, David Souter, and Anthony Kennedy were all nominated by presidents with the hope they would overturn Roe v. Wade, and instead they ruled to uphold it. 

It is important to note that justices tend to “evolve,” meaning you cannot always predict which way they will rule. The fact that Roe v. Wade has remained intact since 1973 and has been used as precedent shows how unlikely its reversal is. Courts have relied on the case for too long and it is unusual for courts to undermine previous rulings. Democrats fear the 6-3 majority, however, on average, only 19% of cases are decided 5-4, with the rest being decided either unanimously or with an overwhelming majority. 

Although Roe v. Wade is a point of contention, the overturn of Obamacare is also of great concern to Democrats, especially with a new case challenging it, California v. Texas. Experts believe there are three possible outcomes: it is upheld, there is a deadlock, or it is overturned, the first two outcomes seem to be more likely. In addition, just because Republicans have brought the case does not mean the Court will favor them, and, in fact, the case appears to be weak. When it comes to Obamacare, the Court could send it back and then it would take years before it makes it back to the Supreme Court. 

There is no doubt the makeup of the Court will be different. This is the case any time a new justice arrives, but too many are blaming their fears on the possibility of breaking precedent when, in reality, they are scared how the Court will handle future cases. If anything, the Court is more likely to limit federal power. Politicians have made the Court political when it is not. The justices care deeply about the law, so much so, it would be hard for them to break precedent. What Democrats and Republicans desire is not necessarily what the Court desires and this is an important distinction to make.