Here’s how it’s going to go down. Donald Trump nominates Brett Kavanaugh, a radical right conservative, to the Supreme Court. If the Republicans in the Senate rubber stamp the nominee, as is expected, a newly minted “Justice” Kavanaugh will swing the Court to the right, cementing a 5-justice conservative majority. We haven’t seen that kind of reactionary anchor since 1937. That prospect endangers a slew of rights and freedoms to which we have become accustomed.
Let’s be clear. The Court’s conservatives have an activist agenda. They have already neutered the Voting Rights Act because they think racism is over (Shelby County v. Holder). They undermined non-discrimination laws in Hobby Lobby. They recently overturned 40 years of precedent just to weaken public sector unions (Janus v. AFSCME). And they were brazenly hypocritical when they discounted evidence of anti-Muslim bias in Hawaii v. Trump but got all hot and bothered when a minor Colorado government official said some true things about the history of religious-based violence (Masterpiece Cakeshop).
This agenda will continue unabated.
But, as with some of the decisions above–with the notable exceptions of Shelby County and Janus–the conservative majority will not attack head-on. They know the kind of the backlash they and their political benefactors will feel if they directly overturn Roe v. Wade or Planned Parenthood v. Casey or throw out Windsor or Obergefell. They know that directly rejecting that kind of precedent will be both socially and administratively jarring.
Their strategy is to keep these decisions in name only. A woman’s right to choose can be subject to regulation and limitation as long as such regulation does not pose an “undue burden” on the woman. Conservatives have been chipping away at the meaning of “undue burden” for years. Today, states can place such onerous restrictions on doctors and clinics that provide abortions that almost all clinics in a state close down. And that is not an undue burden. Forcing a woman to drive hundreds of miles is, to the conservative federal judiciary, not an undue burden. Prohibiting state run health agencies from even mentioning abortion to women seeking help is not an undue burden. Allowing fake clinics to pressure women out of their decision is not an undue burden. At this rate, conservatives could keep Roe and Casey and still effectively ban abortion for women living in at least 30 states.
They could lead a similar stealth attack on the freedom to marry and other pro-queer equality legislation. As we saw in the arguments during the Masterpiece Cakeshop case, conservatives want to use the guarantee of free exercise of religion in the First Amendment as a pretext for allowing people to discriminate or deny service to queer persons. They believe that when someone is religious, the freedom to observe their religion as they see fit should allow them to opt out of non-discrimination law. Taken to its extreme, this view has the capacity to destroy all equality legislation, not just marriage equality. As with the guerrilla attack on abortion rights, this approach to equality legislation could leave every single pro-queer equality law on the books and yet render them absolutely meaningless.
Therefore, don’t expect to see headlines where the Supreme Court overturns Roe. But if Kavanaugh, Trump, and their friends on the Court have their way, it won’t matter. Those rights will effectively be gone anyway.