From health care to marriage rights, here is how the Supreme Court could change America if Trump has his way.
Justice Anthony Kennedy's retirement from the Supreme Court will be an unthinkable blow to civil rights and social progress in America, if Trump is allowed to appoint the replacement of his choice.
The only way to keep this from happening is if Democrats and pro-choice Republicans in the Senate get enough votes to defeat the Republican majority on a confirmation vote, or if Democrats make a commitment to block every Senate vote for the rest of the year in order to force McConnell to delay the confirmation until after the new Senate is seated.
Otherwise, it's going to be bad. There's no way to sugarcoat it.
Luckily, Democrats aren't backing down yet; Senate Minority Leader Chuck Schumer (D-NY) released a statement pushing for the nomination to wait until after the elections.
"Millions of people are just months away from determining the senators who should vote to confirm or reject the president’s nominee, and their voices deserve to be heard now, as Leader McConnell thought they deserved to be heard then," he said. "Anything but that would be the absolute height of hypocrisy.”
Here are a few examples of what's at stake if Trump gets to add another Supreme Court seat to the one Republicans already stole from President Obama:
Abortion rights: Roe v. Wade could be history
This is the big one.
Trump is committed to nominating a hardcore anti-choice judge who would overturn Roe v. Wade, and his list of potential nominees reflects that.
It's possible that Chief Justice John Roberts might oppose overturning Roe v. Wade, since he might fear the public backlash it would cause.
But don't count on it.
"With the retirement of Justice Kennedy, we are in a state of national emergency," Reproaction co-founders and co-directors Erin Matson and Pamela Merritt said in a statement. "If Senators allow him to replace Justice Kennedy that means the federal right to constitutional abortion will be gone, and those Senators will be complicit in the future deaths and imprisonment of people who were pregnant in the wrong place at the wrong time."
It's as simple as that: if abortion is illegal, women will die and go to prison.
In fact, the United States has already jailed and prosecuted hundreds of women for miscarriage or self-induced abortion, in the years since abortion became legal. And even now, more and more women are resorting to self-induced abortion because restrictive state laws have made it so hard to get an appointment at a nearby clinic in so many states.
Imagine how much worse it will get without Roe.
It probably wouldn't take long for a direct challenge to Roe v. Wade to make its way to the Supreme Court. Anti-choice state legislatures have been feverishly passing unconstitutional abortion bans for years — like bans on abortion after six weeks, or bills that totally ban abortion by defining a fertilized embryo as a "person" — just in case they got that chance.
If Roe is overturned, abortion will automatically be outlawed or severely restricted in at least 13 states. A dozen or so more would probably move quickly to pass new abortion bans.
And Roe v. Wade doesn't even have to be directly overturned for nationwide abortion rights to be done away with in the Supreme Court.
In fact, that might be the most likely scenario: a series of anti-choice rulings that claim to uphold Roe but actualy chip away at its protections — until one day, Roe v. Wade is so toothless that the Roberts court feels safe overturning it for good.
LGBTQ rights: Marriage and more are at risk
It seems unthinkable that legalized same-sex marriage could be overturned just a few years after it was granted in 2015's landmark Obergefell v. Hodges decision.
But it's very possible with a new ultra-conservative Trump appointee.
Even if Obergefell isn't overturned directly, Mark Joseph Stern pointed out at Slate, the court could still chip away at its legal protections for gay couples. Some states have already tried to do this, and will probably try again with a more conservative Supreme Court.
For instance, we could soon live in a world where gay and lesbian Americans are technically allowed to get a marriage license — but still aren't allowed to adopt children together, or aren't allowed to be listed on each other's death certificates.
And marriage isn't the only right at risk. Kennedy was also a key vote in the decision that banned states from outlawing oral and anal sex between two men or two women.
LGBTQ couples often read excerpts from Kennedy's opinion in Obergefell at their weddings. But now, as Stern put it, Anthony Kennedy has destroyed his legacy as a hero of gay rights by retiring at a time when Trump could appoint his replacement.
Health care: People with pre-existing conditions are in danger
The Trump administration has already weighed in supporting a lawsuit that could leave tens of millions of Americans completely uninsurable — or at least forced to pay astronomically high premiums.
That's because it uses twisted legal reasoning to argue that Obamacare's protections for Americans with pre-existing health conditions are unconstitutional.
Obamacare has been in legal jeopardy ever since it was first passed, and it's already been weakened once by the Supreme Court.
Conservatives are determined to get rid of it, and they will probably keep trying to use the Supreme Court to do so — even if they have to blow up the entire health care system in the process.
Racial justice: Any hope of reform could be lost, and backsliding looks likely
There's a surprising bipartisan movement in America right now to reform the criminal justice system — from outlawing the death penalty and the psychological torture of solitary confinement, to shortening sentences and offering more options that don't involve prison.
Any of these reforms would be a huge deal for racial justice, since black men are sitting on death row and in jail at wildly disproportionate rates, and police abuses
Kennedy might have been willing to consider some of these options, as Vox's Dylan Matthews explained. But a hardline conservative replacement nominated by Trump — who has a 1980s-level obsession with "tough on crime" — probably won't.
Affirmative action is also in serious danger, even though Kennedy has been inconsistent in his support for it. "With Kennedy gone, replaced by a more stalwart conservative, it’s likely that the uneasy affirmative action consensus will buckle, and a ruling finally doing away with public affirmative action programs will come," Matthews wrote.
Other rights have already been eroded — and are in even more danger now
The Supreme Court has made a series of terrible decisions on civil rights and liberties over the last several years.
Here's a short list of other rights that might be at even further risk than they already are with a new conservative Trump appointee:
- Voting rights for minority groups
- Equal representation, which is threatened by gerrymandering
- Environmental protection
- Labor rights
- Immigration and travel rights
- Religious freedom for non-Christians
- Free speech for people who aren't corporations
- Birth control access
In short, progressives need to fight harder than ever, and keep fighting, to protect the rights we hold dear.
Published with permission of The American Independent Foundation.