The New Supreme Court

This op-ed is part of a series paying tribute to the life and legacy of Justice Ruth Bader Ginsburg, who passed away in September 2020. To read the rest of the series, click here.

In March 2014, I wrote an op-ed in the Los Angeles Times encouraging Justice Ruth Bader Ginsburg to retire at the end of that term of the Supreme Court.[1] I explained that it appeared likely that the Republicans would take the Senate in the November 2014 elections, and it was uncertain what would happen in the 2016 presidential election. I wrote that if Justice Ginsburg wanted someone with her values and views to take her place, she should step down and let President Barack Obama pick her successor when there was a Senate with a majority of Democrats.

I received intense criticism for suggesting this, especially from those with whom I usually agree. Justice Ginsburg made clear she had no intention of retiring.

It was a gamble that she would remain on the Court until there was a Democratic President to replace her. The country lost that gamble when she died on September 18, 2020. Eight days later, President Donald Trump nominated Seventh Circuit Judge Amy Coney Barrett to replace Justice Ginsburg. The Senate Judiciary Committee held hearings the week of October 12th and on October 26th, the Senate voted to confirm Barrett by a vote of 52-48. Every Democratic Senator voted against the confirmation, and every Republican Senator except Senator Susan Collins voted to confirm.

Barrett had an extensive “paper trail” as a law professor based on the articles she wrote and the speeches she delivered. She also spent two years as a federal court of appeals judge, and her opinions and votes also provide an indication of her views. Simply put, Barrett was as conservative as any federal judge in the country. In 2018, when Justice Anthony Kennedy retired, conservatives pushed for her, not Brett Kavanaugh, to be nominated.[2] No one disputes that President Trump selected Barrett because of her very conservative views. Republican Missouri Senator Josh Hawley said of her, “For the first time in decades, religious conservatives had a strong voice in the process. And the result was the most openly pro-life, pro-faith nominee of my lifetime.”[3]

In this essay, I discuss the likely effects of replacing Justice Ginsburg with Justice Barrett. Initially, I focus on areas where this shift is not likely to change the outcome of the decisions but will make the vote margin 6-3 rather than 5-4. After all, in so many crucial areas, Justice Ginsburg had been in dissent. I then look at the implications in areas where Justice Ginsburg was in the majority and more generally, the difficulty for the liberals in attracting two votes in any ideologically defined areas of law. Finally, I discuss the long-term implications of this shift on the Court.

I. Changing the Vote Count, But Not the Result

Justice Ginsburg, a very liberal justice, has been replaced by Justice Barrett, a very conservative justice. What is it likely to mean for the Court? I neither want to overstate nor underestimate its importance. Last term, October Term 2019, there were fourteen 5-4 decisions out of fifty-three cases with signed opinions. In ten of the fourteen, the majority was composed of Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh. In these ten cases, the result likely would have been 6-3 rather than 5-4 with Barrett rather than Ginsburg.

In many important areas, there already were five votes for a significant conservative shift in the law and Barrett simply provides a sixth vote. For example, it seems highly likely that there already was a majority before Barrett’s confirmation to dramatically change the law with regard to affirmative action and to interpret the equal protection clause to require the government to be color-blind. In its last decision on affirmative action, Fisher v. University of Texas, in 2016, the Court, 4-3, upheld the University of Texas’s affirmative action program and reaffirmed that colleges and universities may use race as one factor in admissions decisions.[4] Justice Kennedy wrote for the Court, and his opinion was joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Kagan recused herself, likely due to her involvement with the litigation as Solicitor General of the United States. Justice Alito wrote a dissent, joined by Chief Justice Roberts and Justice Thomas. It was the year that Justice Scalia died, and there were only eight justices.

But the three Trump appointees, Justices Gorsuch, Kavanaugh, and Barrett, together with the three dissenters from Fisher, create a clear majority to eliminate affirmative action. Chief Justice Roberts has been explicit in expressing this objective.[5] Over a decade ago, he declared that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[6] Replacing Justice Ginsburg with Justice Barrett is not likely to change the outcome, just the vote count, when affirmative action comes back before the Supreme Court.

Another area where Justice Barrett bolsters the conservative majority concerns the Constitution and religion. Before Barrett joined the Court, there already were five justices who rejected the idea of a wall separating church and state and who believe that the government violates the Establishment Clause only if it coerces religious participation.[7] In the last several years, there were Supreme Court decisions allowing overtly Christian prayers before town board meetings over a long period of time,[8] and permitting a forty-five-foot cross on public property at a busy intersection.[9] Justice Ginsburg dissented in these cases.

At the same time, even with Justice Ginsburg on the Court, there also were five votes to provide much greater protection for free exercise of religion. The last term of the Court demonstrates this. Espinoza v. Montana Department of Revenue involved a Montana law that allowed those giving money to private school tuition organizations to receive up to a $150 tax credit.[10] In Montana, almost all of the private schools are religious. The Montana Supreme Court invalidated the tax credit law as violating the Montana state constitution which forbids direct or indirect government aid to religion.

But the Supreme Court, 5-4, concluded that the Montana Supreme Court violated free exercise of religion in invalidating the Montana program. Chief Justice John Roberts wrote the opinion for the Court and said that the Montana constitution prevented parents from receiving aid if they sent their children to religious as opposed to secular private schools. This, the Court concluded, violated free exercise of religion. The Court said that the government must have a compelling reason and no other alternative any time it denies benefits to religious institutions that it allows to secular ones.

The practical effect of this decision, which follows from the Court’s 2017 ruling in Trinity Lutheran of Columbia, Missouri v. Comer, is that whenever the government gives benefits to secular private schools it must provide them to religious schools unless it can be shown that doing so would violate the Establishment Clause of the First Amendment.[11] Justice Ginsburg dissented in both of these cases.

In Our Lady of Guadalupe School v. Morrissey Beru, the Court held that a religious school cannot be held liable under employment discrimination laws for the choices it makes as to its teachers.[12] Earlier, in Hosanna-Tabor Lutheran Evangelical School v. EEOC (2012), the Court concluded that a fifth-grade teacher who had been ordained as a minister in the faith could not sue a religious school for employment discrimination.[13] The question was whether this case extended to teachers who were not ministers in the faith.

In Our Lady of Guadalupe School, the Court, in a 7-2 decision, with Justice Alito writing for the majority, held that religious schools are exempt from employment discrimination laws for the choices they make with regard to their teachers. This means that religious schools are free to discriminate on the basis of race, sex, religion, sexual orientation, age, and disability in hiring and firing teachers. Again, Justice Ginsburg was in dissent. Replacing her with Justice Barrett would have changed the vote count, but not the outcome.

II. Making It Much Harder to Get to Five

Of the fourteen 5-4 decisions in October Term 2019, there were two where the majority was Roberts, Ginsburg, Breyer, Sotomayor, and Kagan. These likely would have come out differently if Barrett rather than Ginsburg were on the Court when they were decided.

The DACA (Deferred Action for Childhood Arrival) program created by President Barack Obama program applies to individuals who were brought to the United States before the age of 16 and who were under the age of 31. The person must be in school or have graduated high school or be in the military or have been honorably discharged from it. The individual must not have a conviction for a felony or a serious misdemeanor. Pursuant to federal immigration law, these individuals are given deferred deportation status for a period of two years, which can be renewed. This means that they do not need to fear deportation during this time and are eligible for work permits. There are many Dreamers in my law school and on my campus.

President Trump repealed this program as part of his strong anti-immigrant policies. In Department of Homeland Security v. University of California, the Supreme Court found, 5-4, that President Trump’s rescission of DACA violated the Administrative Procedures Act.[14] In an opinion by Chief Justice Roberts and joined by the liberal justices, the Court held that there was not an articulated, legitimate justification that considered alternatives when DACA was rescinded and put over 700,000 individuals in danger of deportation. If the case were decided this term with Barrett on the bench, it likely would have been 5-4 in favor of President Trump.

The other case where Roberts joined with the four liberal justices powerfully shows an area where replacing Justice Ginsburg is likely to make a huge difference: abortion rights. In June Medical Services LLC v. Russo, the Court declared unconstitutional a Louisiana law that required a doctor to have admitting privileges at a hospital within 30 miles in order to perform an abortion.[15] In one sense, this was not remarkable because just four years earlier in Whole Women’s Health v. Hellerstedt (2016), the Court struck down an identical Texas law. Justice Breyer wrote for the plurality in June Medical Services and said that the Louisiana law, like the Texas one, would do little to protect women’s health, but would significantly decrease access to abortion in that state.

In Whole Women’s Health, Justice Kennedy was the fifth vote in the majority joining justices Breyer, Ginsburg, Sotomayor, and Kagan.[16] What is most notable about June Medical Services is that Chief Justice Roberts was the fifth vote to invalidate the Louisiana law. Roberts concurred in the judgment and said that although he dissented and disagreed with the decision in Whole Women’s Health, he felt bound to follow precedent. This is the first time since joining the Court in 2005 that Roberts has voted to strike down an abortion restriction.

But with Barrett and not Ginsburg, this would almost surely have come out 5-4 the other way to uphold the Louisiana law. Indeed, I predict that there are now five votes to overrule Roe v. Wade and constitutional protection for abortion.[17] Before Justice Ginsburg died, I would have said that I thought that there were four votes to overrule Roe: Justices Thomas, Alito, Gorsuch, and Kavanaugh. I thought Roberts likely would have voted to uphold most restrictions on abortion, but I was uncertain that he would be a fifth vote to overrule Roe, especially given his recent emphasis on stare decisis in June Medical Services. Now, though, I have little doubt that such a majority exists.

More generally, replacing Ginsburg with Barrett makes the chance of liberal victories far less likely on the Supreme Court. With four liberal justices, they needed to attract only one conservative justice. Occasionally, as in the two cases last term, they could attract Chief Justice Roberts as a fifth vote. There were other notable instances of this in prior years, such as in the Court’s decisions upholding the Affordable Care Act,[18] and in preventing President Trump from adding a question about citizenship to the 2020 census.[19] And there have been occasional instances where another justice joined the liberals to create 5-4 majorities, such as Justice Gorsuch being the fifth vote in McGirt v. Oklahoma, holding that members of the Creek Nation in Oklahoma could not be tried in state court.[20]

Without Justice Ginsburg, it will be much more difficult for Justices Breyer, Sotomayor, and Kagan to be in the majority. It is not simply the challenge of getting two rather than one vote. It is that there are five staunch conservatives and one moderate conservative; getting two votes from this group for a liberal result will be daunting and, I fear, rare.

III. The Long-Term

The ideological composition of the current Court is the crowning achievement of a conservative political movement that began with Richard Nixon’s campaign against the Warren Court in 1969. By the early 1980s and the Reagan presidency, conservatives openly articulated the goal of gaining control of the Supreme Court and the federal judiciary. Republican Presidents became ever more careful to select justices with proven conservative ideologies and to pick individuals young enough to likely be on the Court for decades.

The composition of the current Court is a product of the historical accidents as to when vacancies have occurred and also deliberate manipulation of the confirmation process by Senate Republicans in blocking the confirmation of Chief Judge Merrick Garland and rushing through the confirmation of Justice Amy Coney Barrett. Since 1960, there have been twenty-eight years with a Democratic President and thirty-two years with a Republican President. During this time, Democrats have appointed eight justices to the Court and Republicans have appointed fifteen. Since 1988—and I pick that year because no current justice was appointed earlier than the George H. W. Bush presidency—there have been sixteen years of Democratic Presidents (Clinton and Obama) and sixteen years of Republican Presidents (Bush, Bush, and Trump.) But the Republican Presidents have nominated seven justices (Souter, Thomas, Roberts, Alito, Gorsuch, Kavanaugh, Barrett), while the Democratic Presidents have selected only four justices (Ginsburg, Breyer, Sotomayor, Kagan). Put another way, although Democrats have won the popular vote in seven of the last eight presidential elections, during this time, Republican Presidents have selected five Supreme Court justices (Roberts, Alito, Gorsuch, Kavanaugh, and Barrett) and Democratic Presidents only two (Sotomayor and Kagan).

Amy Coney Barrett was 48 years old when she was confirmed. If she remains on the Court until she is 87, the age at which Justice Ginsburg died, she will be a justice until the year 2059. At the time Barrett was confirmed, Chief Justice Roberts was 65 years old, while Justice Thomas was 72, Justice Alito 70, Justice Gorsuch 53, and Justice Kavanaugh 55. It is easy to imagine at least five of these justices being on the Court for another decade or two. In other words, the effect of confirming Justice Barrett is that this seat on the Supreme Court will be held by a very conservative justice for a very long time to come, and she is likely to be part of a conservative majority at least for a substantial part of those years.

Conclusion

For conservatives, what I have described is an occasion for great celebration. They have succeeded in their goal of a very conservative Court. For liberals, like me, the challenge is enormous. No longer can we imagine the Court as a possibility for progressive change. We must look to state courts and the political process for that, while fearing how the Court will strike down progressive federal, state, and local laws. We also must consider reforms of the Supreme Court—such as increasing its size—if we want an alternative to a far-right Supreme Court for a long time to come.

Erwin Chemerinsky: Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law.

1. Erwin Chemerinsky, Much Depends on Ginsburg, Los Angeles Times, March 15, 2014, https://www.latimes.com/opinion/op-ed/la-oe-chemerinsky-ginsburg-should-resign-20140316-story.html [https://perma.cc/65JD-F9PZ]. ↑

2. See Ruth Marcus, Supreme Ambition: Brett Kavanaugh and the Conservative Takeover 81 (2019) (describing the conservative push for Barrett over Kavanaugh). ↑

3. Sen. Josh Hawley, Sen. Josh Hawley: Justice Barrett is pro-life and pro-faith — good news for religious conservatives, Fox News (Oct. 30, 2020), www.foxnews.com/opinion/amy-coney-barrett-josh-hawley [https://perma.cc/7LZ4-7Z29]. ↑

4. 136 S.Ct. 2198 (2016). ↑

5. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007). ↑

6. Id. at 748. See Joan Biskupic, The Chief: The Life and Turbulent Times of John Roberts 185-192 (2019). ↑

7. See Howard Gillman and Erwin Chemerinsky, The Religion Clauses: The Case for Separating Church and State (2020) (describing and critiquing the shift in the Court’s religion clause jurisprudence). ↑

8. Town of Greece v. Galloway, 572 U.S. 565 (2014). ↑

9. American Legion v. American Humanist Association, 139 S.Ct. 2067 (2019). ↑

10. 140 S.Ct. 2246 (2020). ↑

11. 137 S.Ct. 2012 (2017). ↑

12. 140 S.Ct. 2049 (2020). ↑

13. 565 U.S. 171 (2012). ↑

14. 140 S.Ct. 2091 (2020). ↑

15. 140 S.Ct. 2103 (2020). ↑

16. 136 S.Ct. 2292 (2016). ↑

17. 410 U.S. 113 (1973). ↑

18. National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). ↑

19. Department of Commerce v. New York, 139 S.Ct. 1543 (2019). ↑

20. 140 S.Ct. 2452 (2020). ↑