Supreme Court’s future hinges on 2020 election

The blockbuster Supreme Court term that just ended was a (nearly) unmitigated disaster for movement conservatives. Chief Justice John Roberts declined to overturn precedent on abortion rights. Conservative activist Justice Neil Gorsuch showed he would join the court’s liberals when the statutory text tells him to. The natural question then is, what’s next? What are the implications for the future of the court?

The short answer is that the court’s future direction is in flux like no other time in recent memory. And what happens next will be determined by the 2020 election and the justices’ health.

The first crucial point here is that, had Roberts and Gorsuch not crossed the court’s ideological lines in the most highprofile cases of the term, we would be looking at an extremely conservative court for the foreseeable future, regardless of the outcome of the November vote.

The court has five conservative justices who — until this term — seemed capable of acting as an unassailable voting bloc for the indefinite future. (The oldest, Justice Clarence Thomas, is only 72.)

This conservative majority was the first on the court in nearly a century, and conservative activists anticipated that it would overturn Roe v. Wade and hold the line on cultural issues like transgender rights.

Instead, the opposite happened. Without retired Justice Anthony Kennedy on his left, Roberts chose to become the swing voter himself — and saved Planned Parenthood v. Casey, the 1992 decision co-authored by Kennedy, Justice Sandra Day O’Connor and Justice David Souter that itself declined to overturn Roe. The blow to pro-life conservatives is utterly devastating. This was their best shot, and they missed it.

Then Gorsuch, with Roberts and the four liberals joining him, held that employment anti-discrimination law applies not only to gays and lesbians but also to transgender people. This, too, was a body blow to movement conservatives, who had invested considerably in opposing transgender rights even after losing the gay marriage issue because of Kennedy.

For conservatives, the only way out of their newly weakened position is to reelect Trump and keep the Senate Republican. Then they would have to hope for retirements from Justices Ruth Bader Ginsburg, 87 (Ginsburg was hospitalized Tuesday to treat a possible infection and discharged Wednesday), and Stephen Breyer, 81. If Trump picked even one strong conservative, they would probably have the votes to overwhelm Roberts on abortion. If Trump got two, they could roll back Gorsuch’s Title VII ruling, too.

If Joe Biden wins in November, the Senate remains Republican and

Ginsburg and/or Breyer have to step down, the court would be reduced to eight or seven members indefinitely — a phenomenon I’ve called the incredible shrinking Supreme Court. A 4-3 conservative majority including Gorsuch could potentially repudiate Roberts and overturn Roe; but the three stalwart conservatives couldn’t touch Gorsuch’s Title VII decision.

However, if Biden is elected and gets a Democratic Senate, it’s widely expected that Ginsburg and Breyer will retire and be replaced by likeminded liberals. That would maintain essentially the current configuration on the court.

The wild card here is Thomas. He will not willingly step down if a Democratic president is in a position to replace him with a liberal. If he has to, however, the court’s balance will change radically: There would likely be a 5-4 liberal majority for the first time since the 1960s. The probability of that happening is low, but for conservatives it remains the nightmare scenario.

It’s tough to know in advance how a new justice will vote, but one thing is clear: The consequences of the 2020 vote on the Supreme Court, and the country, could not be greater.

Noah Feldman is a Bloomberg columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.