Conservatives face transformative defeats if the court goes Left.
Under assault from the Obama administration, the State of North Carolina on Monday asked the courts to intervene in the escalating battle over transgender bathrooms. The standoff has all the trappings of a potential Supreme Court case.
The administration, through the Justice Department, has alleged North Carolina’s HB2 law requiring individuals to use the bathrooms corresponding with their birth gender violates the Civil Rights Act of 1964. In the suit Monday, Gov. Pat McCory called the DO’s position a “radical reinterpretation” of the law, adding, “The department’s position is a baseless and blatant overreach.”
The confluence of concern for states’ rights with a new interpretation of existing law by the Justice Department would make the case an attractive target for the top court in the land.
If Justice Antonin Scalia is replaced with a liberal justice, particularly a very liberal justice, it is not too far-fetched to imagine the court ruling that separate facilities for the genders, or even profession of a difference between the genders, constitutes discrimination. Should Hillary Clinton win the White House, Democrats may get a shot at moving the court even further to the Left. Among the top candidates for possible retirement from the bench are 79-year-old swing-voter Justice Anthony Kennedy and 77-year-old Justice Stephen Breyer, the most moderate of the liberals on the court. Should the vacant Scalia seat along with the seats of Kennedy and Breyer be replaced with decidedly liberal justices, the court would topple dramatically to the Left.
The redefinition of gender would be just one of many areas a seismic liberal shift on the court could dramatically rethread the fabric of the nation. A walk through the 5-4 decisions of the court in favor of the conservative position during President Obama’s term paint a picture of the stakes for conservatives under a liberal-controlled SCOTUS.
Costly Energy Regulations
In no other arena have the jobs, wages and cost of living for Americans been as protected by the court from an overzealous Obama administration than in the energy industry.
So determined has the EPA under President Obama been to kill off coal as a viable means of energy production, the agency has twice been deemed to have overstepped its constitutional bounds by SCOTUS in 5-4 rulings.
Both cases centered around essentially the same premise that regulators must estimate and take into account the economic impact and compliance cost of new regulatory rules before they can be implemented. The first major case, Michigan v. EPA, established the precedent for the cost-benefit requirement for regulatory agencies in 2015. Justice Scalia wrote the majority opinion.
The precedent of the case was applied one year later when the court issued a stay on the administration’s “Clean Power Plan” on Feb 9, 2016, just four days before Justice Scalia was found dead while on a hunting trip in Texas.
If the blocked “Clean Power Plan” went into effect, it would “shutter 66 power plants and eliminate 125,800 jobs in the coal industry,” according to a report from Sam Batkins, director of regulatory policy at the right-leaning American Action Forum.
But the stay, issued in a 5-4 move from SCOTUS, does not block the EPA from reintroducing the regulations so long as they’re paired with economic analysis that justifies their implementation. A liberal-controlled court could easily rule the agency has properly done its homework and allow the catastrophic regulations to move forward.
The removal of the court as a barrier in a new Democratic administration could spur a fresh flurry of radical environmentalist regulations. An EPA unrestrained by anything other than flimsy cost-benefit justifications could complete the throttling of America’s coal industry and bulk up the regulatory assault on natural gas and oil.
The 2nd Amendment
Twice during the Obama administration, the Supreme Court affirmed in 5-4 decisions the right of individuals to bear arms for lawful purposes under the 2nd Amendment. The first, District of Columbia v. Heller in 2008, affirmed the right and McDonald v. City of Chicago in 2010 clarified the right applied to citizens in all 50 states.
A dramatic shift leftward in the court wouldn’t mean the end of gun ownership, but could mean far greater restrictions. Where radical gun control measures like handgun bans, mandatory liability policies or mandatory fingerprint activated trigger locks would once have been knocked down as excessive burdens on the rights of lawful gun ownership, a Left-oriented court could easily find those measures acceptable under a watered down understanding of the Constitution.
The principle of a right to bear arms would survive a liberal-dominated court, but Democratic measures to make guns prohibitively expensive or difficult to obtain could make, and stay on, the books.
The contraception coverage mandate under Obamacare sparked heated debates around the boundaries of religious freedom for individuals and organizations.
In Burwell v. Hobby Lobby, SCOTUS ruled 5-4 in 2014 that closely held companies could be granted exceptions from the contraception mandate because of sincerely held religious beliefs.
Zubik v. Burwell is a similar case before the court this year. It involves religious non-profit organizations, like the Little Sisters of the Poor, and whether they can be exempted from the contraception mandate. Since the Hobby Lobby case came down in a 5-4 split, it’s likely the Little Sisters case, a bundle of six separate cases, will come back in a tie.
Several appeals courts have issued contradictory rulings on the six cases. In the case of a tie, the decisions of the lower court stands in the case, so each of the conflicting decisions will stand if the court deadlocks. This essentially means the law will be different in different regions of the country and almost certainly guarantees the case will come back before the Supreme Court once the Scalia vacancy has been filled.
That means nuns like the Little Sisters of the Poor may be legally able to hold off providing contraceptives, including the abortion pill, while the legal landscape remains contradictory but could be legally ordered to violate their faith by a liberal-controlled court in the future. It’s a move sure to spur a firestorm of opposition from Christians.
Individual liberties, the freedom to express deeply held social and religious beliefs, and the strength of the American energy industry are just a handful of the areas threatened for conservatives by a liberal Supreme Court. Congress and the states could see their authority to protect the sanctity of voting rights and their ability to restrict a free flow of immigrants evaporate under the glare of liberal court activism.
The impact on the judiciary from the next president could extend far beyond two four-year terms and has the power to remake the political and social landscape of the nation. Fights that conservatives have fought for years in Congress, in the states and on the streets could be lost for good in the bat of an eye. Conservatives have much to lose and will want to ponder their predicament before making any hasty decisions about 2016.