One way or another, the US Supreme Court is going to have a new member. President Trump and Senate majority leader Mitch McConnell would like to add someone who would vote with the court’s conservatives: Justices Clarence Thomas, Brett Kavanaugh, Samuel Alito, and Neil Gorsuch, and (most of the time) Chief Justice John Roberts.
What’s at stake?
Here’s an effort to answer that question, with the goal not of taking sides, but of offering specifics.
Environmental regulations, above all involving climate change, would probably be struck down. By a 5-to-4 majority, the court has held that the Environmental Protection Agency has the authority to regulate greenhouse gases. With a new member, the court might overrule that precedent. At the least, the court would probably severely restrict the agency’s authority to combat climate change — and impose other restrictions on its power to control air pollution and water pollution.
Roe v. Wade, giving women a right to choose abortion, would probably be overruled. Even without a new member, the right to choose has been hanging by a thread. The best bet is that if Trump is able to add a justice, the right to choose will be gone. Indeed, some members of the court would likely argue that the Constitution forbids states from allowing abortion.
The Affordable Care Act would probably be struck down in its entirety. The legality of the ACA is currently pending before the court, and the outcome of the case would be hard to predict even without a new Trump appointee. With such an appointee, the best bet is that the ACA will be invalidated.
Affirmative action programs would probably be forbidden. For decades, the Supreme Court has been skeptical of any and all race-conscious programs, including those that try to ensure a degree of racial diversity at universities. Nonetheless, the court has not forbidden all such programs. A newly constituted court would probably say: No racial preferences, ever.
The modern regulatory state would be in serious jeopardy. A more conservative court might revive the “nondelegation doctrine,” which forbids Congress from granting a lot of discretion to regulators, such as the EPA and the Department of Transportation. The court might strike down important provisions of the Occupational Safety and Health Act and the Clean Air Act.
The Federal Reserve Board, the Federal Communications Commission, the Nuclear Regulatory Commission, and other independent agencies would be in severe trouble. Under current law, the president has limited power over such agencies; he cannot order them to do what he wants. Five members of the court have already signaled their dissatisfaction with the idea of independent agencies. With an additional Trump appointee, the idea might go out the window, and all such agencies would be under the president’s thumb.
Commercial advertising, and other forms of speech by corporations, would be given the same kind of protection given to political dissent. That would be a sea change.
The Federal Trade Commission now regulates false and misleading advertisements. The Securities and Exchange Commission now works to prevent securities fraud. The EPA and the Department of Transportation now require fuel economy labels. Many agencies, both state and federal, now require warnings and disclosures.
Until 1976, the Supreme Court had never ruled that the First Amendment protects commercial advertising, and when it finally did so, it was careful to add that false and misleading speech could be regulated. In recent years, however, conservative members of the court have come close to saying that there is no difference between commercial advertising and political speech. Before long, that might well be the law.
Ordinary people, complaining that government officials have violated the law, would have far less access to court. Since the early 1970s, there has been a pitched battle between justices who would give broad standing to those who argue that executive branch officials have (for example) failed to protect food safety, and justices who are skeptical of lawsuits of this kind. A new Trump appointee would fuel that skepticism.
Civil rights laws and voting rights laws would be interpreted more restrictively. Some of them might even be struck down.
Suppose that an employer has adopted a practice that has a disparate impact on women or people of color. It might be a height and weight requirement, or it might be some kind of written test. Can that practice be challenged in court?
In terms of civil rights law, that’s where much of the action is. Many conservative judges are doubtful of the whole idea of “disparate impact.” They might rule that if a government official, or a private employer, did not explicitly draw a discriminatory line (“no women need apply”), or intentionally discriminate against people, there’s no legal problem.
All this is just the tip of the iceberg. With a new Trump appointee, the Second Amendment, now understood to create an individual right to own guns, could be read expansively, and more gun control laws would probably be struck down. Congress’ powers would almost certainly be limited (including its power to enact laws like the Affordable Care Act and the Voting Rights Act). Property rights would be strengthened (and might be invoked, for example, to strike down some applications of the Endangered Species Act).
Whatever your views, the Supreme Court is at a very rare crossroads. It’s important to be clear about what’s at stake.
Cass R. Sunstein is a professor at Harvard Law School and co-author of “Law and Leviathan: Redeeming the Administrative State" (with Adrian Vermeule). He can be reached at email@example.com.