On September 18, 2020, Supreme Court Justice Ruth Bader Ginsberg passed away at the age of eighty-seven, leaving an empty seat on the highest court in the land. Before President Trump even nominated a replacement, much had already been made of the significance of the vacancy. In one voice, Americans left of center joined together to bemoan what they see as the minting of a new conservative supermajority on the Supreme Court, speculating on major losses of rights to come.
New York Times columnist Michelle Goldberg considers Roe v. Wade already “dead,” asserting the US is a country where as a woman she is “dehumanized” and “not a full citizen.” This kind of catastrophic thinking is not only false, but actively hurts the cause of those on the left. In the past fifty years, Democrats have only nominated and confirmed four justices to the Supreme Court. Yet, during that period, the Court itself has never fully abandoned progressive values, in that time delivering landmark progressive decisions like Roe v. Wade and Obergefell v. Hodges. Cynics on the left might argue that this was only due to a bygone era of judicial moderation, which has long since passed with the creation of the Federalist Society, a mechanism designed to cultivate and identify conservative judges as a way to vet them to conservative Presidents and to the conservative public writ large. But even the Federalist Society has struggled to deliver conservatives the jurisprudential results they yearn for.
In the Court’s 2020 summer session, with relatively new Justices Gorsuch and Kavanaugh on the bench giving conservatives a 5-4 majority, conservatives suffered a series of defeats. The Court refused to even hear cases pertaining to qualified immunity and the Second Amendment, precluding themselves from even ruling on two hot-button conservative issues. In Bostock v. Clayton County, Justice Gorsuch joined Roberts and the liberal justices in ruling that Title VII of the Civil Rights Act of 1964 protects sexual orientation and gender identity. In the Department of Homeland Security v. Regents of the University of California, Roberts joined the liberals in defending DACA. In Trump v. Vance, the Court ruled 7-2 that Trump’s accountants and bankers must turn over his personal financial records. In June Medical Services v. Russo, Roberts joined the liberals once again in striking down a law restricting abortion access in Louisiana.
Two distinct lines of argumentation can explain this behavior on the part of conservative Justices. The first explanation is through the legal philosophy of textualism. Long associated with conservatism, textualism holds that when ruling on a law the interpretation should be based on the ordinary meaning of the text, rather than looking to outside sources to determine intent as is done with originalism. To use just one example from the past summer’s cases, Gorsuch relied on textualism to side with Roberts and the liberal justices that Title VII’s explicit protection against discrimination on the basis of sex protects against discrimination based on gender identity and sexuality as well. Such an argument can be drawn from the text because one cannot discriminate against a gay or trans person without such discrimination being rooted in sex. Gorsuch explains his view here using the example of an employer who has two employees who are attracted to men, but one is a man and the other a woman. If that employer fires the male employees who finds men attractive, the male employee has been discriminated against because of his sex.
Gorsuch is not alone on the bench in putting his legal philosophy above his politics. In 2015, Justice Elena Kagan declared of the Supreme Court, “We’re all textualists now.” Another case from this summer demonstrates this principle: In Our Lady of Guadalupe School vs. Morrissey- Berru, two liberal justices joined the conservatives in ruling that church-run schools are entitled to a religious exemption from federal anti-discrimination laws. For these justices, too, loyalty to the text of the First Amendment comes before their progressive politics. Cases like these make clear that the Supreme Court is simply unlike the legislative and executive branches of the federal government in its proceedings. While the presidency and the chambers of congress may engage in nakedly political power struggles with every action they take, the Court operates nowhere near so directly, working instead through precedent and interpretation.
The second explanation of the Court’s behavior comes from its responsiveness to public opinion. Casillas, Enns, and Wohlfarth (2011) finds that the Supreme Court rarely holds opinions which deviate far from the norm of the American public because public opinion actively contains the actions of the Court. Since public confidence in the Court closely tracks the deviation between Court rulings and public opinion, the study finds, the Supreme Court’s perceived legitimacy depends directly on how in line with the dominant opinion the Court’s rulings are. This is just one of many studies to come to such a conclusion, including Mishler and Sheehan(1993), Link (1995), Mishler and Sheehan (1996), McGuire and Stimson (2008), Clark (2009). Given such a known background, and the all-but-inevitable Democratic tidal wave at the polls this election day, the prospect of a Court shifting significantly to the right in the way envisioned so horrifically by those on the left seems impossible. Even further, big Democratic gains this year would raise the specter of Court-packing, a move which will gain popularity in direct proportion to the Court’s deviation from a coming center-left consensus. To avoid such a fate, the Justices will be incentivized to continue ruling as they have been.
For both these reasons, Americans with mainstream opinions have little to fear from the Supreme Court, even with Trump-appointed justices. To be clear, though, a 6-3 conservative majority doesn’t mean nothing. In non-publicized cases with lower stakes, the Court will probably feel free to rule more conservatively than it has in the past. But histrionics around this issue only hurts the left; when the public comes to believe that Trump can actually change the way the Supreme Court rules on controversial issues, conservatives become convinced that Trump is worth their vote even when they hate his character, and thus would-be Never-Trumpers become reluctant Trump voters at the ballot box. To avoid this lamentable situation, progressives should cool their rhetoric.