What Does a 6–3 Court Mean? (Part II)

When it comes to economic matters — a different story than the culture war

In my last post on a 6–3 conservative Court (in which, yes, Brett Kavanaugh may well be the swing justice) I suggested that, when it comes to the highly divisive social and “culture war” issues, like abortion, school prayer, that at least in the short term, the 6–3 court will have the result of dividing the country even further. That can be different than some imagine: overruling Roe will not illegalize abortion everywhere, but rather lead to it being banned in most of the South, much of the Middle West, but not the east and West Coasts or Illinois.

But what about economic matters? Might the 6–3 Court recreate the jurisprudence of the Lochner era; that is, make much present economic regulation unconstitutional? Is it so long to the administrative state? What about the Affordable Care Act?

As for what this will mean more practically — are we entering a period where control of big business will be near-impossible, because of the Court and its composition?

My answer, following 3 predictions, once again is to suggest that the Big Blue State legislatures (the Big Blues) are going to be very important. That answer will make sense in a minute.