John Yoo: Conservative Supreme Court majority? What it could mean on these issues

Conservatives have long sought to create a majority to address the excesses of the Warren Court

It is no exaggeration to say that Justice Ruth Bader Ginsburg, who passed away on Friday at the age of 87, was one of the greatest lawyers of the last half-century. While no one could ever fill her liberal shoes, her replacement could launch constitutional law in an equally opposite, conservative direction for a generation. 

RBG, as she was known (within the Supreme Court, all the justices go by their initials), would have assumed a place among the most important lawyers in American history even if she had never joined the Supreme Court. She was a legal trailblazer.   

She entered the legal profession when the nation’s top schools admitted a bare handful of women. She became one of the nation’s earliest women law professors – first at Rutgers and then Columbia. But her greatest contribution came from her legal campaign to persuade the Supreme Court that the Constitution forbade most forms of gender discrimination.   

MALCOLM AND SLATTERY: RUTH BADER GINSBURG WAS A LIONESS OF THE LAW

In a series of cases in the 1970s, Ginsburg successfully convinced the justices that the Fourteenth Amendment’s equal protection and due process clauses included equal rights for women as well as for all races. 

Justice Ginsburg had a necessarily more modest impact as a judge on the federal appeals court in Washington, D.C., and then, after 1993, as a justice on the U.S. Supreme Court. It was her fate to be a liberal on the more conservative courts of Chief Justices William Rehnquist and John Roberts. Discovering broad new theories of rights was out; fighting a rearguard action to protect the Warren Court legacy was in.   

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Indeed, Ginsburg’s most important majority opinion, which required the Virginia Military Institute to admit women, reaffirmed the principle on which she had staked her career as an advocate for women’s rights. But when it came to the issues of the 21st century, most of her important opinions came in the form of dissents designed to limit, cajole and critique the conservative majority.   

Among Ginsburg’s most memorable were her objection to judicial intervention in the 2000 elections (Bush v. Gore), her dissent from the constitutionality of the ban on partial-birth abortion (Gonzales v. Carhart, 2007), and defense of a broad reading of the 1965 Voting Rights Act (Shelby County v. Holder, 2013). 

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History usually spends more time remembering those who go on the offensive rather than those who play defense. Washington, Napoleon, MacArthur or Patton fascinate us more than their opposing number. Ginsburg’s successor may receive a similar kind of attention, because her vacancy arrives at a pivotal point in the court’s history that could finally put conservative constitutional goals within reach. 

Conservatives have sought to create a conservative majority that could start to pare the excesses of the Warren Court. Despite a majority of Supreme Court picks over the last 42 years, however, conservatives have never succeeded in building a durable, reliable majority. That time is now at hand. 

Consider the current line up of the court. Donald Trump has appointed two justices, Neil Gorsuch and Brett Kavanaugh. Despite occasional disappointments, both have voted in a conservative direction. Indeed, if either had joined the court in the 1980s or 1990s, they would have been considered some of the most conservative justices to date. They join Samuel Alito and Clarence Thomas, who are more devoted to the Constitution’s original understanding than to adhering existing liberal precedents. 

Chief Justice John Roberts, however, has stymied conservatives. Though appointed by George W. Bush, Roberts has steadily moved toward the middle of the court. Last term, for example, the chief justice joined with the four liberal justices – in addition to Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor – to strike down a Louisiana statute regulating abortion.   

Tops on a new conservative agenda would sit religion, an area where the five conservatives have displayed a powerful unanimity. 

He joined with the same liberal group to block Trump’s effort to overturn the Obama administration’s DACA program. Roberts, with Gorsuch, also joined the four liberals in finding that federal discrimination law prohibiting discrimination on the basis of sex including gays and the transgender. While Roberts has held generally conservative views on the constitutional regulation of race and religion, after this term nothing is certain. 

Roberts may believe his political acrobatics will ward off an outright political attack on the court under a Biden presidency. But if he can fill the Ginsburg seat this year, Trump would create a six justice conservative majority that would deprive Roberts’ vote of its influence.  

Tops on a new conservative agenda would sit religion, an area where the five conservatives have displayed a powerful unanimity. On the docket this fall is a case, Fulton v. Philadelphia, that could finally restore religious freedom to the same status as the other rights enshrined in the First Amendment.   

For 20 years, the court has experimented with a regime that allows government to subject religious groups to inferior protections than those granted to those who exercise the rights of speech, press and assembly. Ironically, it was Justice Antonin Scalia who introduced this religion-lite approach and Justice Ginsburg who continued to defend it. A new conservative justice could give conservatives the confidence to overrule this misbegotten effort to downgrade the right of religious minorities. 

Race presents another blockbuster issue that would test a bare majority, but could turn decisively to conservatives with a sixth justice. On its slow but steady way to the Supreme Court is a challenge to Harvard University’s obvious use of race in its admissions policies.  

Recall that in the earlier stages of the case, Harvard admitted that it had measured applicants on several dimensions, one of which seemed to grade students on personality and character and it consistently gave Asians the lowest possible score. Harvard seemed to think that, only by such chance, did this system produce the same percentage of Asians in its freshman class year after year.  

Although he has sharply criticized race-based programs in the past, Roberts might feel he should obey the court’s past precedents upholding race-based affirmative action in college admissions – similar reasoning led him to stick to precedent in striking down Louisiana’s abortion regulations. A sixth new justice would virtually guarantee that Harvard and other colleges will lose, and that the government will return to the color-blind treatment of its citizens that our Constitution demands. 

These cases would merely come first in a potential string of robust conservative victories on the Constitution.  

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A third Trump appointment to the court could spell the death knell for ObamaCare and a resurrection on the limits on the federal power to regulate everyday life. It could trigger a restoration of the rights of states to regulate social and moral issues. It could produce a long-awaited expansion of the Second Amendment right to bear arms and an advance of individual economic rights to own property and make a living.   

Justice Ginsburg took the leading part in a constitutional revolution on gender. Her passing may create the opportunity for the court to shift toward greater equal treatment of religious, color-blind and economic rights as well. 

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