What Does a 6–3 Court Mean? (Part I)

It might be different than you think: it will split the country even further into two nations

Tim Wu

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The Supreme Court is almost certain to have a 6–3 Republican and conservative majority by the end of 2020, if not the end of October. But what will that mean?

The outsider to the law might assume that, on a variety of social value-related laws, it would mean a 180 degree change. And so, for example, abortion, now legal, will become illegal. School prayer, now barred in public schools, will be mandatory. And so on, until the values of the right, and specifically the Christian right, are made the rules for the country.

But actually, at least in the short term, it won’t be that way at all. Instead, what will most likely happen is an intense widening of the differences between different States and between rural areas and cities. Stated differently, the United States, already divided between red and blue, will increasingly really feel like two countries. It may create something close to a de facto breakup.

Take abortion and Roe v. Wade. Overruling Roe will not as some imagine, illegalize abortion; it will, rather, allow states to bar abortion, but not require it. Based on current efforts to restrict abortion, that’ll mean de facto bans in most of the South, and much of the middle West. But it won’t mean anything for states like New York, California or Illinois.

Similarly, allowing school prayer doesn’t mean that local school boards, across the country will mandate prayer. They will instead do so in areas, mostly rural and predominantly Christian, where that’s what locals want.

This analysis doesn’t fit for economic issues — an important exception — for reasons I’ll explain in another post. But since it is on so many minds, the Affordable Care Act is worth discussing. To some degree, I think the same breakup analysis holds. If the ACA were struck down, I think, many States would pass replacements, and that they would be the usual suspects: the wealthier, blue states.

These kind of changes on social issues and healthcare would, I expect, further accelerate the ongoing process of geographic sorting — that is, people moving to parts of the country that fit their…

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Tim Wu

Professor at Columbia University; author of “The Curse of Bigness,” “The Attention Merchants,” and “The Master Switch;” veteran of Silicon Valley & Obama Admin.