What A Supreme Court Without Ginsburg Would Look Like – Worst Case Scenario

Supreme Court Justice Ruth Bader Ginsburg had two malignant nodules surgically removed from her left lung Friday, one of several recent health scares for the 85-year-old liberal lioness of the nation’s highest court.

Ginsburg was recovering from three rib fractures she sustained after falling in her office on November 7. Ironically, had she not broken those ribs, doctors may not have noticed her cancer until it was too late. She has survived several bouts of cancer and had a stent put in her right coronary artery in 2014.

Conservatives rejoiced at the thought of a liberal justice dying from cancer. Conservative commentator and disgraced former FOX News host Bill O’Reilly cheered, “Another Justice appointment inevitable and soon. Bad news for the left.” Other conservatives shared O’Reilly’s enthusiasm over the prospect of Ginsburg dying and President Trump replacing her with a right-wing justice.

As much as liberals don’t want to admit it, the possibility of such a thing happening is very real, especially if Trump wins re-election. So, what would a Trump-packed Supreme Court do?

Reproductive Rights Could Be Gone

Roe v Wade, the landmark decision giving women the right to choose an abortion, is very much at stake if the Supreme Court tilts further right. Already, the court has agreed to allow restrictions on abortions in cases like Planned Parenthood v Casey, which opened the door for legislatures to find creative ways to curtail a woman’s right to choose, as long as it wasn’t an outright ban. In some states, they’ve effectively banned abortions through imposing onerous and nonsensical regulations on clinics that provide safe, legal abortions, forcing those clinics to close their doors on the women who need them.

Conservative legislatures have been passing anti-abortion legislation for years now. In some cases, they’ll propose laws that are blatantly unconstitutional just to see what the courts will let them get away with. Armed with a far-right Supreme Court, the “pro-life” movement may finally secure their crown jewel: the toppling of Roe v Wade.

According to a recent study published in the American Journal of Public Health, nearly one-in-four US women will have an abortion by age 45. Restricting abortions will result in two very different health outcomes for women based on status. Women with resources, like the mistresses of rich politicians, will be able to travel and get an abortion where it is legal. Poor women will be forced to risk bleeding out in a back alley in order to avoid having a child they can ill-afford.

Compounding the problem, you can also expect the Supreme Court to constitutionally clear more roadblocks to women’s access to birth control, as in Burwell v. Hobby Lobby Stores. In that case, the court found that the religious zealots at Hobby Lobby, a for-profit company, didn’t have to follow the law in offering their employees birth control since it conflicted with the business owner’s faith. It is worth noting, the case that struck down laws barring contraceptives, Griswold v. Connecticut, relies on the same “right to privacy” that conservatives want to overturn in Roe v. Wade.

Progress on Racial Equality Could Be Wiped Out

You can expect to see a lot of progress on civil rights undone by the courts. Affirmative action, which has helped countless young minorities achieve their dream of attending college is under attack. In a case backed by right-wingers and headed to the Supreme Court, Students for Fair Admissions v. Harvard, argues that affirmative action should be thrown out.

In a brilliant-but-evil move, conservatives behind Students for Fair Admissions are pitting Asian families, who claim they are the real victims of affirmative action, against the interests of other minority groups. They are represented by Edward Blum, a white lawyer involved in several other anti-minority rights cases. It’s a classic divide-and-conquer strategy.

With more conservatives on the court, communities of color could find police even less accountable. This year, the Supreme Court made it harder for victims of police shootings to find justice. In Kisela v. Hughes, the Supreme Court ruled that a police officer who shot a woman four times without warning when it was not entirely clear she posed an immediate threat could not be sued. Ginsburg found herself in the minority and dissented in this case, but if Trump gets to appoint someone from the “All Lives Matter” crowd, expect even less opposition to stuff like this.

Further assaults on voting rights will go unchecked by a Trump appointee. As the country increasingly becomes urbanized and non-white, Republicans are doing everything in their power to stop minorities from voting. Indeed, they have even resorted to cheating when they can’t win. GOP-dominated state legislatures have a big bag of dirty tricks to keep minorities from voting from closing polling stations in communities of color, voter ID laws, restrictions or registration, and making it harder to restore voting rights for people with past criminal convictions. All of these have a disparate impact on the communities of color that reject Republican rule. Minority communities are also frequently gerrymandered to reduce their influence.

Much of the current restrictions on voting rights came from the case Shelby County v. Holder, where the conservative majority threw out parts of the Voting Rights Act of 1965 which protected the rights of minorities by putting limits on certain states and local governments with histories of racial discrimination seeking to change their voting laws.

In her dissent on that case, Ginsburg took on the right-wing majority, writing in part:

“The sad irony of today’s decision lies in its utter failure to grasp why the [Voting Rights Act] has proven effective … Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

A Trump appointee is unlikely to defend minority rights with such elegance. If conservatives get their way, the Supreme Court will continue to sign off on this new American apartheid, approving even more discriminatory measures.

Immigrants Could Suffer Great Injustices

The past two years have been filled with an endless series of horror stories about immigration and people coming into the county. The courts have stepped in on occasion to block some of the Trump administration’s excesses, but not all of them.

Justice Ginsburg saved the day in the most recent case O.A. v. Trump, where the Supreme Court upheld a lower court decision blocking the Trump administration from banning the fundamental right to seek asylum- which is guaranteed under the United Nations Universal Declaration of Human Rights. Ginsburg cast the deciding vote in the 5-4 decision from her hospital bed while recovering from cancer surgery.

Still, it shows how our nation’s commitment to upholding human rights in such a precarious state. Horrifying images from where our nation has failed to uphold human rights has flooded our televisions for the last two years. We saw our government defend ripping children away from their parents and locking them in cages as they cried out for their mother and we saw border agents fire tear gas at peaceful marchers near the southern border.

President Trump’s hatred for immigrants is well documented, especially non-white immigrants. Despite importing his wives from Eastern Europe, the president began his campaign by calling Mexican immigrants rapists and drug dealers, pledged to build a wall between the US and Mexico, and multiple sources allege he said he didn’t want immigrants from “shithole” countries like Haiti, preferring predominantly white immigrants. With a rubber stamp for the worst atrocities imaginable replacing Ginsburg, the future for immigrants would look very bleak.

LGBT Rights Could Be A Thing of The Past

The most obviously targeted group by conservative judges is the transgender community. Right now, they are fighting just for something so basic many of us take it for granted- the right to use the bathroom matching their gender identity. Trans people face an uphill climb in this environment with a President who wants to kick them out of the military, an Education Department and often local school districts who seem intent on immiserating them, an often unsympathetic healthcare system, and frankly a public who doesn’t accept them as much as they do gays and lesbians.

Which is not to say that gays and lesbians don’t also stand to lose from an increasingly conservative court. Nationwide marriage equality was only granted in 2015 with Obergefell v. Hodges, and it could be overturned or chipped away at by a conservative court. One upside is that so many lives and property are now affected by gay marriage that it would set off a legal shitstorm if it were undone.

Instead, LGBT people are more likely to see more “religious liberty” cases where civil rights protections are overturned by those seeking exemptions. This was the case in Masterpiece Cakeshop v. Colorado Civil Rights Commission where a bigoted baker refused to make a wedding cake for a gay couple. At issue is whether the Colorado anti-discrimination law unconstitutionally deprived the baker of his rights by requiring him to make a cake for an event he disagreed with. The Supreme Court sided with the baker on a technicality, not directly addressing whether there was a right to turn away LGBT people from one’s business, but you can expect that question to come before the court again, and you can expect a Trump appointee to side with the right to discriminate.

It’s hard to imagine, but as early as 2003, gay sex was a criminal act in parts of the U.S. until the Supreme Court legalized sodomy in Lawrence v. Texas. Prior to that Bowers v. Hardwick, decided in 1986, was the controlling precedent. In that case, Cheif Justice Warren E. Burger included in his concurring opinion Sir William Blackstone’s characterization of sodomy as

“an offense of ‘deeper malignity’ than rape, a heinous act ‘the very mention of which is a disgrace to human nature,’ and ‘a crime not fit to be named.'”

Needless to say, it was not a step forward for LGBT rights. Troublingly, there are people who still hold these attitudes, and they are disproportionately influential in the conservative Christian coalition that gave us the current dumpster fire raging in the White House.

When Trump brags about appointing conservative judges, he’s really telling his base, “Soon you’ll be able to do whatever terrible things you want to the groups you hate, and I’ll make sure the law doesn’t stop you.”

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