Ruth Bader Ginsburg Is Dead: Long Live Amy Coney Barrett!

How Donald Trump’s Choice to Replace Ginsburg Will Totally Destroy Her Legacy

by MARK GABRISH CONLAN

Copyright © 2020 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

I’ve just finished watching the telecast of President Donald Trump’s announcement of Indiana federal appeals judge Amy Coney Barrett as his third appointee to the United States Supreme Court. The telecast was vintage Trump, showing a heartstring-twanging dedication to “family” (well, at least he got his third wife Melania to smile in his presence, which almost never happens), dragging out not only Judge Barrett but also her husband and seven children, two of whom are Black. The Barretts adopted them from Haiti, and their appearance had the same sort of staged air as the African-Americans who trooped across the various stages of the Republican Convention: “You see? We’re not racists!”

Both President Trump and Judge Barrett herself brought forth the sad tale of her youngest son, Tiny Tim -- oops, his name is Benjamin, but you can forgive that mistake because he has Down’s Syndrome and Judge Barrett proclaimed that of all their kids, he’s the one they love best. It reminded me of how Sarah Palin used to parade (metaphorically) her own Down’s baby and use it as an excuse for why she was against abortion and wanted to make it illegal: “If you let women have abortions, wonderful chiuldren like this would have never been born!”

Though Trump floated the names of two other candidates -- like Barrett, both Federalist Society Right-wing attorneys appointed to the federal appeals bench by Trump himself -- Barrett was the virtually certain choice from the get-go. She’d actually been one of the finalists for his last Supreme Court pick, which went to Brett “I Like Beer” Kavanaugh instead because Senator Susan Collins (R-Maine) had said she wouldn’t vote for a nominee who was outright committed to reversing Roe v. Wade, the landmark 1973 decision establishing women’s constitutional right to at least some abortions. Instead Trump needed to put forth a pick who would continue the Court’s Right-wing strategy of giving Roe the death of a thousand cuts -- establishing more and more “exceptions” in which states could limit abortions until the theoretical right to one became meaningless.

Of the people on Trump’s short list, Coney Barrett was probably the most intelligent -- which will make her the most dangerous -- and the most outspoken in terms of just how far Right she wants to take the court. If Coney Barrett is confirmed -- which, since the Republicans have a U.S. Senate majority and their leader, Mitch McConnell, has a hammer-lock on the process, is virtually certain -- Roe v. Wade is almost certainly headed for the same judicial scrap heap as Dred Scott v. Sandford and Plessy v. Ferguson. The difference, of course, is that when the Supreme Court reversed those noxious precedents they expanded civil rights for people of color in general and African-Americans in particular. The reversal of Roe would make millions of American women essentially slaves to their wombs.

Coney Barrett’s arrival on the court will also spell the end of the Affordable Care Act and the exclusion of millions of Americans from access to health care -- in the middle of the worst pandemic in over 100 years. The original decision upholding so-called “Obamacare” came in June 2012 and showed the court split 4-4 on whether the law was within Congress’s constitutional power “to regulate Commerce between the States” -- a provision known as the Interstate Commerce Clause and the basis of virtually all federal power to regulate the economy. Four justices -- led by the since-retired Anthony Kennedy -- said that the Affordable Care Act exceeded Congress’s power under the commerce clause. Four justices said it didn’t.

In what turned out to be the controlling opinion, chief justice John Roberts said it didn’t matter whether the law as a whole was within the scope of the Commerce Clause because its centerpiece -- the so-called “individual mandate” requiring all Americans either to buy health insurance or pay a penalty to the government to cover the costs of caring for uninsured people -- was essentially a tax, and the federal government certainly had the power to tax. Coney Barrett, in a 2017 law review article, said Roberts had pushed the law “beyond its plausible meaning” in upholding it.

Then, at the end of 2017, with Trump in the White House and Republicans in control of both houses of Congress, they pushed through a huge tax cut benefiting mostly wealthy individuals and corporations -- and among the provisions of this law was one repealing the individual mandate in the Affordable Care Act. States with Republican attorneys general came together and sued to ask that the courts throw out the entire law on the grounds that without the individual mandate, all of it would have to be declared unconstitutional. A federal judge in Texas actually ruled that way, and the case has since moved up the appellate court ladder and is scheduled to be heard by the Supreme Court on November 14 -- 11 days after the Presidential election.

With Coney Barrett, Trump’s two other appointees -- Neil Gorsuch and Brett Kavanaugh -- and the two other members who voted against the Affordable Care Act in the first place, Clarence Thomas and Samuel Alito, all in place, the Affordable Care Act is almost certainly doomed. Goodbye to protections against discrimination in health care on the basis of pre-existing conditions -- and hello to a positive test for COVID-19 being used as a “pre-existing condition” and an excuse to deny you health coverage. Goodbye to the provisions that allowed parents to keep their kids on their health plans until the kids turned 26. Hello once again to some of the most exploitative pre-ACA practices of the health insurance industry, including low-ball “insurance” policies that covered virtually nothing and lifetime caps on benefits that left many patients with cancer or other long-term degenerative diseases without access to care at all. And goodbye to the expansions of Medicaid that allowed millions of Americans to have health coverage after having been denied it for years.

Goodbye, also, to the forlorn hopes of many progressive Democrats and Leftists in the U.S. of replacing America’s current convoluted non-system of health insurance with a single-payer “Medicare for All” system. If a five-vote majority of the Supreme Court is ready to strike down even s relatively mild, incremental a reform as the Affordable Care Act -- which was originally cooked up by th e Right-wing American Enterprise Institute as an alternative to single-payer (though they later disavowed it and now regard the ACA as an affront to American “freedom”) -- one can readily imagine how scathing they would be in their opinion invalidating any attempt by a Democratic President and Congress to put the for-profit health industry out of business at all.

There’s one other aspect of Coney Barrett’s appointment that will doom the hopes of progressives, liberals and Democrats. Coney Barrett’s presence on the court will almost certainly ensure that Donald Trump’s presidency continues after January 20, 2021 regardless of how people vote in the November 3, 2020 election. Already Donald Trump has signaled his intention to challenge the election results in court if he loses. “Get rid of the ballots, and there won’t be a transfer [of power],” he has said. If Trump is leading in the six key “swing states” on election night, he will file suit to block any further counting of ballots and insist the courts declare him the winner. If he’s behind on election night, a so-called “army of Republican lawyers” will invade every one of the states where the results are close and challenge them in court on the ground of the alleged falsity of mail-in ballots.

Donald Trump will literally stop at nothing to stay in power. Already Republican lawyers are working with their party’s legislators in “swing states” where Republicans hold political power to take the authority to pick the state’s Presidential electors away from the voters and appoint a slate of Trump electors themselves. The ultimate arbiter of all the legal tricks Trump and his people will cook up to keep Trump in office will be the United States Supreme Court -- and with three of his own appointees on it as well as two other justices who are their (and his) ideological clones, Trump has no rational reason to doubt that the Supreme Court will award him the election no matter what. That’s why worried Democrats are saying that in order to become President, Joe Biden not only has to win, but to win by such a landslide margin the election result will be unchallengeable -- and though the polls have consistently shown Biden ahead, none of them have indicated a landslide.

Justice Ginsburg’s Doomed Legacy

The rush on the part of President Trump, Senate Majority Leader Mitch McConnell and all but two of the Republicans in the U.S. Senate to full the seat left open by Justice Ruth Bader Ginsburg’s passing on September 18 after a years-long battle with cancer has virtually crowded out any public discussion and assessment of Ginsburg’s legacy. So is the virtual certainty that her replacement by Amy Coney Barrett will consign most, if not all, of the gains for women, people of color, Queer people and other traditionally marginalized groups Ginsburg helped to achieve, both as a women’s rights and human rights attorney before she joined the Court and as a justice on it.

When Ruth Bader was born in 1933, America was a very different place, especially in its attitude towards women. Only 13 years had passed since American women had finally won the right to vote. In most states, married women could not own property independent of their husbands; once a woman married, everything she owned became her husband’s property, and if they divorced he could keep it all. And a husband’s dominion over his wife wasn’t limited to property: it covered her body as well. Until 1977 -- 1977! -- California’s rape law defined rape as forcing a woman other than your wife to have sex with you.

In Ginsburg’s childhood abortion was illegal in all 50 U.S. states, and most banned birth control as well. Private employers were totally free to have policies refusing to hire married women -- the idea was that if you had a husband it was his responsibility to support you -- and in the 1920’s, 1930’s and 1940’s Hollywood made a lot of movies about young couples who couldn’t get married (or have sex) until the man was making enough money to support both of them. Some films even told stories of young couples who were married but had to pretend they weren’t -- and engage in elaborate stratagems for concealing their true status -- because they needed both their incomes to survive.

Ruth was determined to change all that. She was one of the first women to graduate from Harvard Law School -- though when she applied the registrar told her openly, “Why should you take a place that should go to a man?”, and she ended up getting her law degree not at Harvard but at Columbia because her husband Marty Ginsburg had had to move to New York to pursue his career as a tax attorney. She was turned down for a Supreme Court clerkship because she was a woman, and eventually she made it her life’s work to overturn all forms of discrimination based on gender. Commenting on laws that barred women from physically strenuous occupations on the ground they needed to be “protected,” Ginsburg snapped back that such laws “put women not on a pedestal, but in a cage.”

Ginsburg can be compared to two other progressive icons who served on the U.S. Supreme Court, Louis Brandeis and Thurgood Marshall. As a lawyer, Brandeis had taken on the economic and social horrors unchecked lassiez-faire capitalism was wreaking on working people in the early 20th century. He was the first proponent of the doctrine of the “Living Constitution” -- the idea that the Constitution should be enforced based not on the “original intent” of the people who wrote it, but how they applied in the modern world. He also based many of his cases on public-health and sociological data to document how laws that looked fair on their face, like the so-called “freedom of contract” between a giant corporation and an individual worker, were in fact unjust instruments of social control of the many by the few. Brandeis so strongly relied on this sort of information to defend minimum-wage laws and other workers’ legislation that to this day an appellate brief that cites social-science data extensively is known as a “Brandeis brief.”

Thurgood Marshall “made his bones” as a social-change attorney through his position as executive director lead counsel for the NAACP’s Legal Defense and Education Fund in the 1940’s and 1950’s. With invaluable assistance from two nearly forgotten associates, Black attorneys Spottswood Robinson and Robert Carter, Marshall led the NAACP to victory in the landmark Brown v. Board of Education case in 1954, which abolished the so-called “separate but equal” doctrine the Supreme Court had approved 58 years earlier in Plessy v. Ferguson. Marshall and his fellow NAACP attorneys fought a step-by-step attack on segregated schools for two decades, working their way down from graduate schools to colleges and finally to K-12 public schools. Like Brandeis, Marshall used social-science data to show how Black-only schools were in fact far inferior to white schools, but their very existence sent a message to Black children telling them they were inferior. The United States Supreme Court finally agreed with him; in a unanimous decision, Chief Justice Earl Warren wrote in May 1954, “Segregated schools are inherently unequal.”

Ruth Bader Ginsburg sought, both as an attorney practicing before the Supreme Court and later as a judge, to have the Court declare that discrimination against women was as constitutionally offensive as discrimination against Blacks. She represented Sharon Frontiero, a woman in the Air Force who had sought an on-base housing allowance and was told those were only given to men and she should consider herself lucky they let her be in the Air Force at all. She also represented Stephen Weisenfeld, who lost his wife in childbirth and applied for survivor’s benefits from the Social Security Administration to help raise their child as a single parent. He was told that benefit was only available to women who lost their husbands, not men who lost their wives. It was even called the “mothers’ benefit.” Ginsburg challenged this as discrimination based on gender -- and won. But in the 2018 documentary RBG she said that, though she was glad Frontiero won an 8-1 decision from the Supreme Court, only four of the justices went along with hert belief that the Constitution bans discrimination based on gender and makes women a “suspect class” deserving the strictest scrutiny of any legislation that treats them differently from men.

Ginsburg’s replacement by Amy Coney Barrett will follow the pattern of President George H. W. Bush when he replaced Thurgood Marshall with Clarence Thomas, Just as Bush appointed another Black man but one with views and a public record almost totally the opposite political and judicial philosophy, Trump has appointed a white woman with a diametrically opposite postion to Ginsburg’s on women’s issues -- especially whether women have and deserve control over their own bodies, or whether the government can essentially legislate that women are slaves to their wombs.

Coney Barrett has said it’s her personal “conviction” that “life begins at conception” and she’s written -- inaccurately -- that Roe v. Wade “essentially permitted abortion on demand.” (In fact Roe divided pregnancy into three trimesters and allowed increased government regulation of abortion in each succeeding trimester -- and it was attacked at the time for reading such a system into a Constitution that says nothing explicit about women, pregnancy or their control of their own bodies.) What’s more, as Harry Litman argues in a mostly excellent overview of Barrett’s judicial philosophy in the September 24 Los Angeles Times:

“Barrett, like Justices Samuel Alito and [Clarence] Thomas, has articulated a relatively weak view of stare decisis, or respect for Supreme Court precedent. Roe owes its continued vitality to stare decisis. [Last year chief justice John Roberts provided the fifth vote to strike down a law restricting abortions in Louisiana almost identical to one the court had struck down in Texas a year before, prior to Justice Kennedy’s retirement and replacement by Brett Kavanaugh. Though Roberts had been against the Texas decision, he changed his vote on the Louisiana case because he didn’t think the court would ahve credbibility if it revered itself just one year after the original decision,]

“In her time [as a law professor] at Notre Dame, Barrett has made a kind of academic subdiscipline of undermining the doctrine [of stare decisis]. In fgour separate articles, she has suggested, among other things, that it sometimes violates the due process clause and that it stands in tension with an ‘originalist’ reading of the Constitution. … I would expect her to combine with Thomas, Alito, Gorsuch and Kavanaugh to achieve the far Right’s Holy Grail of overturning Roe. And that may be just the beginning of the wrecking-ball jurisprudence.”

Litman points to dissents Coney Barrett filed in her current position as a judge on the Seventh Circuit U.S. Court of Appeals that suggest how she would rule as a Supreme Court justice. She wanted to strike down a law that bars convicted felons from owning handguns -- which may explain why, in the little ceremony in which Trump introduced her as his nominee, they both stressed their absolute loyalty and determination to maintain “your Second Amendment rights.” She also took the side of the Trump administration against the Seventh Circuit majority in voting to uphold a Trump executive order banning immigrants deemed likely to require public assistance from entering the U.S.

The Federalist Society Plot

Amy Coney Barrett owes her imminent arrival on the Supreme Court to a decades-long plot to take over not just the Court but the entire federal judiciary. It was the brainchild of probably the most important man in America you’ve never heard of: Leonard Leo. In 1982 he founded an organization called the Federalist Society to identify radical-Right law students and mentor them in their subsequent careers. The idea was to push as many Federalist Society members into judicial office as possible so that the U.S. courts as a whole would be pushed towards a pro-business, anti-worker, anti-consumer, anti-environmentalist, anti-civil rights agenda.

The Federalist Society has largely achieved its goal thanks to the particular support of Senate Majority Leader Mitch McConnell and, since 2017, President Trump. In 2013, McConnell, then still the Senate Minority Leader, started to have his Republicans use the filibuster and the so-called “blue slip” process (by which no federal judicial appointment could go through the U.S. Senate until both the nominee’s home-state Senators filed blue slips approving the nomination) to prevent President Obama from making judicial appointments. The Democrats responded by eliminating the filibuster for all judicial appointments except the Supreme Court, and Obama got a few of his picks for judges through the Senate.

But the precedent turned costly for the Democrats when the Republicans regained control of the Senate in the 2014 midterm elections. McConnell adopted a scorched-earth policy to make sure virtually none of Obama’s judges got confirmed. HIs most famous coup was denying Obama’s last Supreme Court nominee, Merrick Garland, a Senate hearing on the ground that it was already 2016, a Presidential election year, and therefore the seat should be held open until the next President was elected. But McConnell didn’t just block Obama from filling a seat on the Supreme Court; he held over 200 federal judgeships vacant so there would be a cornucopia of openings available for a Republican President to fill after the 2016 election.

Just what McConnell would have done if Democrat Hillary Clinton had won the 2016 election is a mystery -- though we had two hints when Republican Senator Ron Johnson said of Garland’s nomination and McConnell’s blocking it, “We will not allow Democrats to ‘flip’ the Supreme Court,” and Ted Cruz said he’d vote to keep the late Antonin Scalia’s seat open until a Republican President could fill it, whether that took four, eight or 12 years. Instead Donald Trump became President and eagerly appointed all the judges the Federalist Society told him to -- which is why Trump, despite his stumbles in filling many other government jobs, has nominated judges quickly and efficiently -- and McConnell’s Republican Senate majority has equally efficiently confirmed them. McConnell also got his Republicans to end the filibuster for Supreme Court nominees when Trump picked Neil Gorsuch in 2017, so as much as they’re much as they like to chatter about “all options being on the table, Senate Democrats have no options whatsoever to keep Amy Coney Barrett off the Supreme Court.

The Court’s Historic Role

Harry Litman ended his September 24 Los Angeles Times article on Coney Barrett’s record and philosophy with a surprisingly inaccurate and ahistorical analysis of the Supreme Court’s historical role in American politics. “Barring a miracle, the court Trump is fashioning will be viewed for decades with anxiety by the majority in a society that has traditionally looked to it as the ultimate bulwark against government oppression,” Litman wrote. “That would be a shame for the court, but it will be a catastrophe for Americans whose liberties will be on the chopping block.”

In fact, for most of the nation’s history the United States Supreme Court has been a bulwark of protection for economic and social privilege. Ever since the appointment of John Marshall as Chief Justice by President John Adams in 1800 -- when he, like Trump today, was reaching the end of his first term and facing an election in which he was unlikely to win a second one -- the Court has been a conservative, and sometimes a downright reactionary, force in American history. Ever since 1803, when Marshall proclaimed the doctrine of “judicial review” -- the power, mentioned nowhere in the Constitution, of the Supreme Court to invalidate laws passed by Congress or a state legislature by declaring them unconstitutional -- it has mostly been used to protect the powerful, not to block oppression.

In 1857 the Supreme Court ruled in Dred Scott v. Sandford that not only did Black people “have no rights white people are obliged to respect,” but once you were a slave you were always a slave, even if you fled to a “free state” where slavery was illegal. In the 1880’s the Court invalidated the 1875 Civil Rights Act (almost identical to the one passed in 1964) and declared that corporations were “persons” and therefore had the same guarantees of political freedom and due process as flesh-and-blood individuals. The result of this was a string of decisions that invalidated laws to establish minimum wages and protect workers’ health and safety on the ground that they violated the “substantive due process” of corporations and the “freedom of contract” of workers to take jobs at less than a state-mandated minimum wage.

In the 2016 campaign, Hillary Clinton rhetorically asked, “Just when does Donald Trump think America was ‘great’ so we can return to it and ‘make America great again’?” As I’ve written in these pages before, Trump’s policies and governing style have made it clear when that was: the 1880’s, when there were no laws restricting corporate power, America’s first restrictions on immigration -- the Chinese Exclusion Acts -- were passed, labor unions were illegal, the environment wasn’t even an issue, and the Supreme Court had endorsed a permanent second-class status for African-Americans in the Civil Rights Cases (1883) and Plessy v. Ferguson (1896), which said the Fourteenth Amendment allowed segregation of whites and Blacks into facilities that were theoretically “separate but equal” but in practice were separate and highly unequal.

Things only began to change when the abuses of corporate power and the government’s acquiescence or active support of it brought forth reactions from a nascent American Left. Populists, progressives, socialists and anarchists began to organize, with different ideas of what to do about the power of rampant capitalism but a determination that something needed to be done to curb corporate power. Presidents like Theodore Roosevelt and Woodrow Wilson eventually adopted parts of the progressive agenda and got Congress to act on it, but the courts remained a roadblock to change.

The clashes between a President and Congress determined to enact progressive legislation and a diehard Supreme Court determined to block it reached its height in the mid-1930’s. During Franklin Roosevelt’s first term the Court overturned law after law designed to bring about an end to the Great Depression and a fairer, more equitable distribution of economic opportunity and power. In 1937 Roosevelt introduced a bill in Congress to expand the Supreme Court from nine to 15 justices -- but even coming off the greatest Presidential landslide in our history and with substantial Democratic majorities in both houses of Congress, Roosevelt’s bill was denounced as “court-packing” and was an abject failure.

The immediate tug-of-war between a progressive President and Congress and a defiantly Right-wing Supreme Court ended in 1937, when Owen Roberts became what today would be called a “swing Justice” and started voting to uphold New Deal legislation instead of joining his four Republican colleagues to overturn it. Ultimately the Court started to swing Left by sheer attrition -- Roosevelt lasted long enough as President he was able to outlive the dinosaurs on the Court and replace them with liberal icons like Hugo Black and William Douglas. Further appointments by Roosevelt’s successor, Harry Truman, strengthened the Court’s progressive tendencies, but the brief heyday of the Supreme Court began in 1953, when chief justice Fred Vinson died and Republican President Dwight Eisenhower replaced him with California Governor Earl Warren.

The 16 years of the so-called “Warren Court” marked a brief interlude of far-reaching progressivism that shaped public perceptions of the Supreme Court. Liberals who had once denounced its power to throw out legislation as unconstitutional now embraced it, while Right-wingers who had once seen the Court as a bulwark against progressive ideas denounced it and even called for Warren’s impeachment. Under Warren, the Supreme Court abolished the legal basis for racial segregation, vastly expanded the due-process rights of criminal suspects (including guaranteeing them access to legal counsel and forbidding police from extracting confessions by torture), established the “one man, one vote” doctrine that required regular reapportionment of Congressional and state legislative districts after every census, and upheld the constitutionality of the Civil Rights Act of 1964 (thereby reversing the decision in the Civil Rights Cases of 1883 that had thrown out a similar law as unconstitutional) and the Voting Rights Act of 1962. The Warren court also strengthened the separation of church and state by banning forced prayer in schools, and it found a “penumbral” right of personal privacy in the Constitution that allowed it to invalidate state laws banning married couples from using birth control.

Richard Nixon’s assumption of the Presidency in 1969 and his appointment of Warren Burger to replace Warren that year slowed but didn’t stop the run of progressive Supreme Court decisions Warren’s court had started. Of Nixon’s four Court appointees, only William Rehnquist was an out-and-out Right-winger; Burger and Lewis Powell were moderates and Harry Blackmun was a liberal who wrote perhaps the Court’s most controversial decision of the 20th century, Roe v. Wade (1973). (Ironically, the dissent against Roe was written by Byron “Whizzer” White, who’d been appointed to the Court by Democrat John F. Kennedy.) It wasn’t until Ronald Reagan defeated Jimmy Carter (who didn’t get to appoint any Supreme Court justices at all) in 1980 that the Court began to swing Rightward and reassume its traditional role in American history as defender of the powers and privileges of the rich.

Reagan promoted William Rehnquist -- who, as a law clerk to Justice Robert Jackson in 1953, had argued that the 1896 Plessy v. Ferguson decision legitimizing racial segregation “was right and should be reaffirmed” -- from associate justice to chief justice. He appointed Antonin Scalia to the court and tried to get Robert Bork, a far-Right attorney and appeals judge who had written a ruling upholding laws that made Gay sex illegal, onto the Court, but when progressives pressured Senate Democrats to reject Bork’s confirmation Reagan appointed Anthony Kennedy, a strong progressive on two issues -- juvenile justice and Queer rights -- but a total Right-winger on everything else. Kennedy wrote the Citizens United decision that virtually wiped out government’s ability to keep rich people and corporations from buying elections, and he wrote an opinion striking down the Affordable Care Act in 2012 he was hoping would be the Court’s decision -- until John Roberts, appointed chief justice by George W. Bush after Rehnquist’s death, double-crossed him and wrote his own opinion saving the law.

Reagan made one other appointment of long-term significance to the Supreme Court. He put Sandra Day O’Connor on the court, breaking the glass ceiling and giving the Court its first woman Justice. O’Connor, an appeals court judge from Arizona, was sponsored for the position by her home-state Republican Senator, Barry Goldwater, whom I’ve described in these pages before as “a principled conservative when that wasn’t an oxymoron.” When Rev. Jerry Falwell, who had organized the Moral Majority and considerably boosted Reagan’s election, announced that it was “the duty of all good Christians” to oppose O’Connor because she’d followed Supreme Court precedents and issued pro-abortion decisions in Arizona, Goldwater snapped back, “I think it’s the duty of every good Christian to kick Jerry Falwell’s ass.” On the Supreme Court, O’Connor declined to overturn Roe but concocted the doctrine that states could regulate abortion as long as they didn’t put “an undue burden” on women seeking them -- which led to the grim joke in the legal profession, “What’s an ‘undue burden’ on a woman seeking an abortion?” “Whatever Sandra Day O’Connor says it is.” (After she retired it became, “Whatever Anthony Kennedy says it is,” and when he retired it became, “Whatever Brett Kavanaugh says it is.”)

Reagan and the Republican Presidents who succeeded him slowly but steadily moved the Supreme Court back to its traditional position on the Right of American politics. George H, W. Bush appointed the moderate David Souter but also the far-Right Clarence Thomas, thereby replacing Thurgood Marshall with a Black man with totally opposite views on ideology and judicial philosophy -- just as Trump is replacing Ginsburg with another white woman but one who’s her polar opposite. George W. Bush got solid Right-winger Samuel Alito on the Court as well as John Roberts, who has almost always voted with the Right but has drawn back on a few issues -- notably the Affordable Care Act and Louisiana’s abortion law -- where he thought a Right-wing decision would damage the credibility of the Supreme Court as an institution.

With Amy Coney Barrett joining Thomas, Alito and Trump’s two previous appointees, Neil Gorsuch and Brett Kavanaugh, the Court is now dominated by a bloc of five far-Right justices who couldn’t care less about the credibility of the Supreme Court as an institution. They’re ready and willing to declare open season on just about every remaining progressive Court decision of the last 70 years. Even if Joe Biden becomes President in 2021 (something the five Right-wingers on the current Court will probably have the power to prevent, as I explained earlier) and the Democrats regain control of the U.S. Senate, just about everything they try to do on any major domestic issue will be thrown out by the Supreme Court -- just as nearly all Franklin Roosevelt’s major legislation was invalidated by the Court in 1933-36.

The only open question is just how far the Right-wing Court majority will go. They will almost certainly throw out the Affordable Care Act and Roe v. Wade. They will probably reverse the Warren Court’s finding of a “penumbral” right to privacy and thereby allow the government once again to interfere directly in the most intimate details of people’s private lives, especially who they can have sex with, how, and how they may deal with the good and bad consequences therefrom. Even if they don’t outright overrule the Court’s previous decisions allowing Queer people to have sex and marry each other, they will no doubt increase the latitude the Court has already given government clerks and other officials with “sincere religious convictions” against homosexuality (i.e., evangelical Protestants and conservative Catholics) to refuse to treat Queer people equally.

The current Supreme Court can also be expected to mount the same sort of all-out assault on workers’ rights, consumers’ rights and the environment as their ideological forebears in the 1880’s. They will tightly limit the reach of the Interstate Commerce Clause -- the part of the Constitution that gives the President and Congress power to control the abuses of private corporations and wealthy individuals -- and throw out willy-nilly virtually all attempts by government to control economic and workplace abuses by the rich against the not-so-rich. They will probably also endorse the concept of “regulatory takings,” the idea that if a local government tells a landowner what he can or can’t do with his land, they have to pay him or her to compensate for the potential profit those government restrictions will cost the property owner. This will wipe out virtually all zoning laws, since few local governments will be able to compensate property owners for the money they potentially lose by not being able to do what they want with their land.

The new Supreme Court majority will bring the United States closer to the Libertarian ideal of a just society -- which just about anyone who isn’t part of their cult would regard as highly unjust. One reason the American Right is so determined to get rid of the Affordable Care Act is it’s a major expansion of the American welfare state at a time when the Right is determined to get rid of all of it. If President Trump gets re-elected and the Republicans keep control of the Senate, you can expect them to respond to the ballooning government deficits created by the 2017 welfare-for-the-rich tax cuts and the SARS-CoV-2 relief programs by demanding huge cutbacks in Social Security, Medicare and Medicaid -- and eventually their complete elimination.

It’s not beyond the realm of possibility that the current Supreme Court could overrule the 1964 Civil Rights Act -- just as a previous and less conservative Court gutted the 1965 Voting Rights Act in 2013. At the very least they will allow more people with “strong religious objections” to African-Americans and other people of color to discriminate against them The current Court will also do Trump’s bidding on immigration and allow him to put a virtual stranglehold on immigrants entering the U.S., especially from lower-income countries -- and if Biden and the Democrats win in 2020 and try to do something positive on immigration, the current Court will probably throw it out.

But the most catastrophic potential of the new hard-Right court majority is their likely attitude against virtually any legislation to protect the environment. The world in general and the United States in particular is already on a suicidal course that ignores human-caused climate change and exalts the use of fossil fuels and the environmentally devastating process of “fracking” needed to produce them in a world that is quickly running out of them. Judging from recent Supreme Court decisions invalidating environmental regulations, the new Court majority may simply declare the Clean Water Act and Clean Air Act unconstitutional -- or, if they don’t go that far, they’ll subject environmental legislation to the same “death by a thousand cuts” they’ve already imposed on reproductive choice and are likely to on civil rights. The ultimate casualty of the new Supreme Court majority may well be the continued existence of the human species.