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
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 politics and values. The bottom line is a Supreme Court that might, in effect, undo some of the Civil War’s, New Deal and Great Society’s unifying effects, and thereby leave the country to split into two.
The 6–3 Court would probably, stated differently, make the States more important. They have already become centers of activity in a number of areas, like privacy laws and Net Neutrality. I think the 6–3 Court would, at least in the short term, make the State legislatures the thing to watch.
I have described this in rather bloodless fashion, but it won’t be that way as it happens. Also, in case this make it sounds like Conservatives will never get their way nationally, there are a few areas, like the Second Amendment’s limits on gun control, where conservatives can and will make their way the rule for the entire country. And there is also the whole topic of economic regulation — the weakening or striking down of economic regulation, which will be the topic of another post.
It is also possible that, in time, the Supreme Court will find ways to whip the blue states into line on social issues — for example find a way to force New York to ban abortion, based on the rights of the fetus. That, however, would take a jurisprudence that just hasn’t yet been developed. More realistically, the conservative majority may try and hunt down and kill things like the State versions of the ACA. But that be hard for a conservative jurisprudence that has been mainly centered on states’ rights.
Finally, as I’ve said, none of this necessarily holds for economic regulation, thanks to the weapon of preemption — but that’s the topic of part II.