If it weren't for 77,744 voters in Michigan, Wisconsin, and Pennsylvania, the Supreme Court would have had, for the first time in nearly 50 years, a majority of Democratic-appointed justices.
Ever since Abe Fortas’s resignation in 1969, the Court has either been split down the middle or, more often, made up primarily of Republican appointees. Some of those Republican appointees nonetheless turned out to be liberals, but even taking that into account, the Court hasn’t been majority liberal since 1971, when William Rehnquist and Lewis Powell joined.
That hasn’t stopped the Court from evolving in a progressive direction at times. In 1973, GOP appointee Harry Blackmun authored Roe v. Wade, drawing only two dissents; from 1996’s Romer v. Evans to 2015’s Obergefell v. Hodges, Anthony Kennedy and the Court’s liberals steadily expanded the rights of LGBTQ Americans.
Table of contents
I. Hillary Clinton could turn the Court liberal
Criminal justice:
II. Ending solitary confinement
III. Fighting mass incarceration
IV. Challenging the death penalty
Voting:
V. Pushing back on Citizens United
VI. Expanding voting rights
VII. Curbing gerrymandering
Abortion and beyond:
VIII. An equality approach to abortion
IX. And that's not all
But for the most part, over the past half-century liberals have been playing defense as an organized and well-planned movement of conservatives has limited the scope of rights trumpeted by liberals, expanded the power of the state in criminal justice, and issued more business-friendly rulings on campaign finance and regulatory issues.
The Court ruled that states didn't have to give poor black and Latino school districts the same funding as rich white districts. It ruled that school resegregation achieved through white flight to wealthy suburbs was just fine. It ruled that despite declaring abortion a fundamental right, that didn’t mean Medicaid had to extend that right to poor women, and then it reversed course on treating abortion as a fundamental right at all. It struck down the death penalty but then brought it back four years later.
And in more recent years, it’s gutted the Voting Rights Act, struck down limits on campaign donations by corporations, strangled Medicaid expansion in the crib, and for the first time in American history declared an individual right to own guns.
All that could've changed — if Hillary Clinton had won.
The Supreme Court is truly at a tipping point
The unfilled vacancy of Antonin Scalia’s seat combined with a Hillary Clinton victory in November would've set the Court on a new course.
Merrick Garland, nominated by Barack Obama in March, has yet to face a vote. But though Senate Republicans have denied they’ll confirm him in the lame-duck session this winter, had Hillary Clinton won they might have been tempted to confirm him lest she name a more liberal nominee. Either way, the result would be a moderate to liberal justice in Scalia’s seat, moving the Court appreciably to the left.
Clinton also stood a good chance of replacing the moderate-to-conservative Anthony Kennedy (who recently turned 80) with a reliable liberal, and keeping Ruth Bader Ginsburg (83 and a two-time cancer survivor) and Stephen Breyer’s (78) seats in liberal hands. The result would be a solid 6-3 liberal majority of a kind not seen in many decades.
The implications of such a shift are massive. The Court is not a legislative body, and it can’t simply undo all of the conservative rulings of recent decades. The doctrine of stare decisis means the Court tries not to contradict its past rulings except in rare cases. But after speaking to a number of prominent legal scholars and experts, it appears there are some notable areas where a liberal Court could've made a significant difference.
A liberal Court could've ended long-term solitary confinement. It could have mandated better prison conditions in general, making it more costly to maintain mass incarceration. It could have conceivably ended the death penalty. It could have upheld tough state campaign finance rules and started to move away from Citizens United. It could have started to develop a robust right to vote and limited gerrymandering. It could have strengthened abortion rights, moving toward viewing abortion rights as a matter of equal protection for women.
But because Donald Trump won in November, this is all moot.
This could've been the end of solitary confinement
Let’s start with perhaps the biggest thing that could've happened under a liberal Court, perhaps even a Court where another conservative replaces Scalia: the end of long-term solitary confinement.
In 2015, Anthony Kennedy filed a concurring opinion in Davis v. Ayala, a death penalty case in which the Court (joined by Kennedy) sided against the defendant. Nevertheless, Kennedy used his concurrence to unleash a bracing jeremiad against the evils of solitary confinement, in which the defendant had been held for most of his more than 25 years in prison.
"Research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exact a terrible price," Kennedy wrote. "In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them."
The implication was clear: Kennedy wanted advocates to bring a case challenging the constitutionality of long-term solitary confinement on the grounds that it constitutes cruel and unusual punishment under the Eighth Amendment. He basically dared them to, and suggested that if such a case reached the Court, he’d be inclined to limit the practice. With four reliable liberals already on the Court and likely to join him, it’s quite likely that such a case would end with solitary confinement sharply limited.
Sharon Dolovich, a law professor at UCLA and faculty director of the university’s Prison Law & Policy Program, describes solitary confinement as the "one major unresolved issue" in criminal justice "that is definitely going to come up" in the next few years.
It’s a long time coming. At any given moment, about 80,000 to 100,000 people are held in solitary confinement in the US; in many states, the average stint in solitary lasts years. And it’s been that way at least since the 1980s, without any federal court intervention to halt it.
"There has not been one federal court that has affirmatively found extended solitary confinement to be per se unconstitutional under the Eighth Amendment," Dolovich recalls. "And that is in spite of the fact that even under the relatively unprotective Eighth Amendment doctrine, there is no question that solitary confinement is unconstitutional."
That doctrine, Dolovich explains, requires plaintiffs alleging a constitutional violation to show that prison officials were "deliberately indifferent to a substantial risk of serious harm," or "deliberately indifferent to a basic human need." The Court has equated deliberate indifference with a recklessness standard, which requires that prison administrators know there’s a risk that what they’re doing could seriously harm the prisoner.
"Given what everybody knows about solitary confinement, that would be easy to show," Dolovich says. Then the plaintiff must show there’s a substantial risk of serious harm, or of being deprived of a basic human need, due to solitary confinement.
"There’s so much data now — physiological data, psychological data, reentry data — there’s so much data making clear the extended physical, psychological, and emotional trauma that people suffer in extended solitary confinement, it would be so easy for the Court just to point to it all and conclude there’s an objective harm," Dolovich says.
Were the Supreme Court to strike down or limit long-term solitary confinement in one case on those grounds, it would open the door for lower courts to honor additional challenges, eventually leading to change across the system. And it wouldn’t require rethinking Eighth Amendment doctrine to be more friendly to prisoners.
Jonathan Simon, a law professor and director of the Center for the Study of Law and Society at UC Berkeley, agrees that solitary confinement is on "the verge of being found unconstitutional, at least in its most excessive forms." Just what "excessive" means there is, naturally, a matter of debate, and Simon cautions that the Court could err on the side of giving prisons too much leeway.
He notes that Ashker v. Brown, a recent case challenging solitary confinement in California that ended in a settlement rather than reaching the Supreme Court, "involved a class of inmates that had been held more than 10 years, and the settlement will still allow people to be held up to five years, and even after that they can still be held in solitary if they’re given programming and special services."
By contrast, the United Nations special rapporteur on torture has called for an absolute ban on solitary confinement lasting 15 days or more. "I’m not sure Kennedy or any justice would go nearly that far," Simon says.
But even if the Court were to only place a five-year maximum on periods in solitary confinement, that would be a significant step forward. If the Court is bold enough to accept the UN standard and place a hard two-week limit, then tens of thousands of prisoners would be spared a truly devastating punishment that many medical experts believe to be a form of torture.
A liberal Court could have made it more costly to maintain mass incarceration
Solitary confinement is perhaps the most shockingly cruel condition of imprisonment in the United States, but the sheer scale of mass incarceration is also an issue in need of addressing. And because federal courts have the ability to affect policy at both the federal and state level, they can have considerable influence on the incarceration rate going forward.
Both Dolovich and Simon were skeptical that outright challenges to legislative sentencing statutes like mandatory minimums could prevail. "At the end of the day, the ability of courts to control the level of incarceration is relatively weak compared to legislatures who can change the underlying sentencing structure," Simon warns. But one thing the Court can do is raise the cost of incarceration by insisting upon prisoners' rights to humane conditions.
The most encouraging recent Supreme Court decision along these lines was Brown v. Plata, a 5-4 ruling in 2011 upholding a lower court order that California release tens of thousands of prisoners to reduce overcrowding, which the state itself admitted was unconstitutional. It was, Simon notes, "the first prisoners' rights decision to come down in favor of the prisoner in a long time. It ended mass incarceration in California." But the unique circumstances of the case meant it had limited applicability outside the state.
In the past, the Court hasn't been particularly willing to accept Eighth Amendment challenges to prison conditions. In Rhodes v. Chapman, an 8-1 decision in 1981, the Court ruled that "double celling" (placing two inmates in a space with room for only one) was not cruel and unusual punishment. That effectively ruled out Eighth Amendment challenges to overcrowding in and of itself.
Overturning Rhodes seems unlikely, but modifying it with a ruling specifying that people who are seriously ill need better treatment could be possible. And because prisons are, like the country as a whole, aging considerably at the moment, that could have a far-reaching impact.
"The new focus of prison conditions, which could be a real game changer in my view, is the intersection of overcrowding with mental and physical health burdens. The real game changer in terms of the current prison population is how disease-burdened it is," Simon says. "That could be pretty far-reaching because states have to contemplate the consequence of incarcerating so many aging prisoners."
Dolovich also emphasizes the need to expand prisoners’ procedural ability to challenge their conditions. The 1996 Prison Litigation Reform Act greatly limited prisoners' access to the courts for making complaints about conditions, and the Court could either interpret the law in ways that minimize those limits (as it did in Ross v. Blake this year) or attempt to strike down provisions of the act. That opens the door to more challenges, including challenges focusing on the intersection of overcrowding and poor prisoner health.
"If you require prisons to be constitutional in this way, it becomes more expensive and burdensome for states to comply," Dolovich explains. "States are going to reduce the incarceration rate."
One way in which the courts could be more receptive to directly challenging sentences, she says, is by starting to take "collateral consequences" into account. That’s the technical term for the myriad ways that criminal convictions, and in particular sex crime convictions, can hamper defendants’ lives in the long term. That includes restrictions on where they can live after they’re released from prison, bans on government employment and benefits like public housing, inclusion on sex offender registries, bans on gun purchases and voting, and so forth.
Dolovich outlined one possible example of a challenge incorporating collateral consequences: "So you’re a 19-year-old boy who’s been convicted of having sex with your 15-year-old girlfriend. You’re convicted of statutory rape, which itself carries huge direct carceral consequences — you go to prison for five years. But not only that; you also have to register as a sex offender for the rest of your life, which is a burden in itself and carries innumerable other collateral consequences that come along with the status of being a registered sex offender."
"So you bring a claim under Harmelin v. Michigan" — a 1991 ruling banning "grossly disproportionate" sentences — "claiming the sentence you received is grossly disproportionate to the crime. That’s an incredibly state-friendly standard, and you barely ever win. … But a court committed to including collateral consequences in its thinking about gross disproportionality would realize it’s not just the five years in prison, it’s all of the burdens that someone registered as a sex offender has to follow."
The death penalty could be ripe for another challenge
Almost as explosive as Kennedy's 2015 concurrence was a dissent filed by Stephen Breyer and joined by Ruth Bader Ginsburg that same year. The case, Glossip v. Gross, resulted in a 5-4 ruling affirming that the particular drug cocktail Oklahoma currently uses in executions doesn't violate the Eighth Amendment. One dissent, by Sonia Sotomayor and joined by the Court's other three liberals, narrowly argued against the specific drugs. Breyer's dissent took aim at capital punishment as a whole.
"The death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishment,’" Breyer concluded. He rests the argument on four premises: a) the Court has ruled that death sentences must be reliably applied only to appropriate cases to be constitutional, and the frequency of wrongful executions shows that the punishment is not reliably applied; b) the punishment is arbitrarily applied, with some "worst of the worst" offenders not receiving it and some lesser offenders facing execution; c) wait times between conviction and execution are cruelly long; and d) the decline in the punishment’s usage in the US shows it’s becoming unconstitutionally "unusual."
It’s telling that neither Sotomayor nor Elena Kagan, the two other liberals on the Court, joined Breyer’s opinion. And it’s hard to imagine Merrick Garland, who was one of the prosecutors who successfully sought to see Timothy McVeigh executed, declaring his own past actions categorically unconstitutional.
But if Garland’s nomination failed and Clinton picked a less tough-on-crime nominee for Scalia’s seat, or if Kennedy left the Court during her presidency, it’s conceivable there would've existed five votes for outright abolition of the death penalty.
"I would not be surprised to see Sotomayor and Kagan supportive of [abolishing the death penalty]," Simon says. "Kennedy is a harder call. The reason I'm somewhat optimistic about including Kennedy goes back to his interest in dignity. The strongest of the opinions in Furman" — the 1972 case that briefly abolished capital punishment — "was William Brennan's, and Brennan based it most directly on human dignity. He argued the Eighth Amendment bans any punishment you can't carry out without respecting the dignity of those being punished." Kennedy leaned heavily on the importance of dignity in Brown v. Plata, the California prison overcrowding case.
Simon even found an early Kennedy opinion from when he was a circuit court judge in the 1970s in which he quoted Brennan’s concurrence in Furman at length. Even if Kennedy doesn’t buy a dignity argument for abolishing the death penalty, Simon suspects he’d be swayed by the issue of delays, which Breyer raised — and which were the entire reason for the prisoner’s stay in solitary confinement that Kennedy assailed in his concurrence last year.
"[Kennedy] came and gave a talk at Berkeley Law about a year and a half ago, and one of my colleagues was rude enough to ask him point blank whether he thought the death penalty was compatible with human dignity," Simon recalls. "Of course he declined to answer, but he said kind of cryptically, ‘Here in California you guys take so long enough to execute people that we may not even need to reach that cliff.’"
One other death penalty–related case Simon thinks the Court could amend or overturn, which could have widespread implication outside this specific issue area, is McCleskey v. Kemp, a 1987 case in which the Court ruled 5-4 that a death sentence for a black defendant could not be overturned due to the state of Georgia's hugely disproportionate imposition of capital punishment on African Americans.
The effect of that was to foreclose challenges to the criminal justice system premised on its discriminatory effect — the Court required that plaintiffs show that discrimination was intended, not merely that the system was in effect discriminating against African Americans.
"It's been terrible for equal protection law generally. Criminal justice is run through with very disproportionate racial practices that are very difficult to prove as discrimination," Simon says. "Overturning McCleskey, and a companion case a few years later, could be a really important change agent both in unleashing the potential for trial court challenges to racially disproportionate criminal justice practices of all sorts, and perhaps ending the death penalty in those states where it seems most firmly rooted, like Texas and Florida."
The Court probably wouldn't have overturned, but could have limited, Citizens United
No Supreme Court action in recent memory has provoked the kind of populist outcry and fury of Citizens United v. FEC, the 2010 case that banned restrictions on corporate and organizational spending on independent campaign activities, opening the door to Super PACs and the considerably reducing limits on corporate influence in elections.
Hillary Clinton, Barack Obama, and Senate Democrats have all pushed for constitutional amendments to overrule the decision. Clinton promises to "appoint Supreme Court justices who will protect Americans’ right to vote over the right of billionaires to buy elections," and has reportedly told her own donors that she will make prospective justices pledge to overturn Citizens United.
That’s created the groundwork for a shift away from the ruling’s approach to campaign finance. "If Citizens United is overturned, it will be because of the sustained efforts of critics in civil society to critique it, educate the public about why it's wrong, and show through local initiatives that alternative reforms are possible," Georgetown Law professor David Cole says.
But most of the experts I spoke with expressed skepticism that the decision will be overturned outright. The Court rarely reverses rulings explicitly, especially ones made as recently as Citizens United. And more to the point, directly overruling the decision would likely entail a challenge to a campaign finance law identical or very similar to the one at issue in the case. Congress shows little interest in passing such a law, and states similarly lack initiative to do so.
That being said, the legal scholars I asked suggested that a more left-leaning Court could subtly undermine Citizens United by upholding distinct campaign finance regulations at the federal and state levels.
"My guess is that [a more liberal court] wouldn't overrule Citizens United in the short run, but that it would narrow the decision and uphold a range of possible regulations of money in the political process," Geoffrey Stone, a law professor at the University of Chicago and specialist in free speech cases, says. "Over time, these decisions would significantly erode Citizens United."
Heather Gerken, a Yale Law professor and expert on law surrounding elections, voting, and federalism, concurs, and suggests one possible line of legal reasoning that cases like this could embrace. "I think Citizens United can be overturned without even overturning it, something that should appeal to a moderate and careful judge like Judge Garland," she explains. "Citizens United was premised on the idea that independent spending was genuinely independent. If this political cycle has shown us anything, it’s that this premise is flatly wrong … The Court could easily take notice of these facts and license legislators to regulate this spending precisely because it isn’t ‘independent’ in the sense that Citizens United used that term."
This could greenlight limitations on independent corporate spending of the kind that Citizens United struck down without undermining that decision’s reasoning. That prevents the kind of upheaval in precedent that the Court normally tries to avoid, while still signaling to states and Congress that it’s okay to pursue more aggressive campaign finance regulations.
The Court could take a more expansive view of voting rights
While less popularly reviled than Citizens United, the Roberts Court’s 2013 decision in Shelby County v. Holder was arguably more consequential. The decision struck down Section 4 of the Voting Rights Act, which contained a formula for deciding which states and counties would have to be subject to "preclearance," a process in which any changes to voting laws they proposed must be run past the Justice Department to make sure they don’t violate the voting rights of minorities.
The upshot of the ruling was that the Voting Rights Act could not be easily enforced by the federal government, and instead has to be enforced through individual lawsuits filed after laws are passed, under Section 2 of the act. That’s a much slower, more expensive process that effectively makes it harder to challenge things like voter ID requirements or restrictions on early voting.
This is something that’s mainly in Congress’s court. "There are plenty of ways that Congress could revive [preclearance], and a Court with a liberal majority would be far more welcoming to new legislation," Gerken says. "But, again, the ball is in Congress’s court."
"The preclearance regime can't easily be recovered," says Pam Karlan, a law professor at Stanford and former deputy assistant attorney general for civil rights specializing in voting rights. At best, she explains, "the Supreme Court could give a robust reading of Section 2 in the Voting Rights Act," and use it to invalidate large categories of franchise-restricting voting regulations.
The problem is deeper than Shelby, too. "The Court has really moved to an ‘undue burden’ standard on the right to vote" in the past 10 years or so, Karlan explains, "rather than treating it as a straightforward fundamental rights issue under strict scrutiny."
Under an undue burden standard, legislation that places some burden on a constitutional right, such as the right to vote, is acceptable, as long as that burden isn't excessive in scale.
For example, in Crawford v. Marion County in 2008, the Court ruled that Indiana's photo ID requirement for voters was not an undue burden, because, as Justice John Paul Stevens wrote, "the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph does not qualify as a substantial burden on most voters' right to vote."
"Strict scrutiny," by contrast, is the toughest test a law can face in court, requiring that it address a government interest that's really compelling, and address it in the least restrictive, narrowest way possible. Voter ID laws would be in trouble with such a regime, not least since the evidence that voter fraud is a major problem, and preventing it is a compelling government interest, is basically nonexistent.
But Karlan notes that the Court wouldn’t even have to totally reverse course and start applying strict scrutiny to make progress on these issues. "One of the things I’ve been thinking about is a more liberal version of the undue burden–style standards that the Court has employed," she says. "A version of that test that really takes into account socioeconomic disparities and the like could have a major impact."
"For example, voter ID — it’s not a burden on most people to have a voter ID," she continues. "A huge majority of Americans drive cars and have drivers' licenses. So saying that you need to show your driver’s license to vote for most people is not a burden. But if there’s a group of people that are too poor to own cars, or are disabled in ways that mean they can't drive, for those people getting the documents and going to the DMV and dealing with a system that requires a certain degree of sophistication is a real burden. If courts were to start taking seriously the question of looking at the burden with respect to the people who actually face it, that might change dramatically how the Court thinks about a lot of these issues."
That’s a particularly promising avenue for the Court since it requires minimal change in the Court’s doctrines. "It’s not necessarily the legal tests themselves that are the problem," Karlan notes. "It’s the sensibilities and the understandings and the world-awareness of the people applying the tests." That’s something that changing the membership of the Court could shift substantially, even if the new Court isn’t eager to overturn precedent.
The Court could start to fight gerrymandering
Both Karlan and Gerken also point to gerrymandering and districting issues as an area where action from a more liberal Court would be likely.
As it stands, many judicial conservatives view partisan gerrymandering issues as "non-justiciable." The Court has agreed to no firm standard as to what is and isn’t allowed in creating congressional and legislative districts, and in 2004’s Vieth v. Jubelirer a plurality opinion by the right wing of the Court argued that no such standard is even possible.
But the Court’s four liberals dissented, and Anthony Kennedy filed a concurrence arguing that while at that moment there was no clear standard the Court could use to evaluate whether a redistricting is acceptable, it’s possible the Court could develop such a standard in the future.
Since then, there’s been a lot of academic energy around trying to develop such a standard. University of Chicago law professor Nicholas Stephanopoulos and political scientist Eric McGhee have devised one promising option, which notes that gerrymandering forces the losing party to "waste" votes by placing all its voters into a small number of districts where the party gets a landslide, rather than spreading those voters out so they can have more impact.
Stephanopoulos and McGhee argue that fair districting requires a roughly equal number of wasted votes for each party, and that districting schemes where one party is wasting many more votes are unconstitutional. Whitford v. Nichol, a challenge to Wisconsin's gerrymandering for state House districts, is using the Stephanopolous and McGhee standard, and could eventually make it to the Supreme Court.
But there are other standards on offer as well, including one developed by political scientists Gary King and Bernard Grofman of Harvard and UC Irvine, respectively, and another by Princeton neuroscientist Sam Wang.
"I do think this will be a Court open to the possibility of policing partisan gerrymanders, at least the worst ones," Gerken says. "I’ve told every election lawyer and social scientist I know to dust off their old papers and briefs, because I think the Court is ready to act. It just needs a manageable standard to move forward, and there are plenty of those."
"The question can’t be, ‘Was there any gerrymandering here?’" Karlan notes. "If the people who drew the districts are breathing, there was some level of gerrymandering, particularly if they’re drawn by state legislatures. The question has to be, ‘Is it too much?'"
How abortion law could change
This past spring saw the strongest Supreme Court verdict affirming reproductive rights in years, as the Court struck down two Texas regulations of abortion clinics in Whole Woman's Health v. Hellerstedt.
One interesting aspect of the Court’s ruling is that Stephen Breyer, the author of the majority opinion, explicitly invoked an "undue burden" test. As in voting rights, the Court has decided to evaluate abortion regulations under that metric, rather than treating abortion as a fundamental right that the Court must past a strict test to restrict.
In 1992's Planned Parenthod v. Casey decision, a plurality opinion by Sandra Day O'Connor embraced the "undue burden," standard, which has had the effect of allowing a wide number of abortion regulations — bans on late-term abortions, parental consent requirements, waiting periods — that otherwise would’ve been struck down.
Indeed, not even a decade earlier, in City of Akron v. Akron Center for Reproductive Health, the Court struck down a waiting period and parental consent requirement and explicitly rejected an argument from O’Connor in the dissent, and from the Reagan administration’s solicitor general, Rex Lee, that they should adopt an undue burden standard that would allow such measures. Once undue burden was adopted, those kinds of provisions were viable for states to pass again.
Whole Woman’s Health didn’t abandon the undue burden standard but instead repurposed it, in much the way Karlan suggested, by taking into account things like indirect effects (the closure of clinics due to the regulations, for example) and effects on quality of care and the patient experience of women seeking abortions. A test that had formerly been used to restrict the right to abortion had been retrofitted to protect it.
"It is difficult to say, but my guess is that undue burden will remain the standard going forward, with the focus on exactly how it will be applied, because it is a standard that can be developed to apply to strongly protect against harmful government restrictions on abortion," Dawn Johnsen, an expert on abortion law and a professor of law at Indiana University, says.
If the Court wanted to make a bigger shift on the issue, it could adopt an argument that Justice Ginsburg has been making for years and start considering abortion as an issue of gender equality. Roe v. Wade asserted a right to abortion based on a right to privacy found in the due process clause of the 14th Amendment; many observers have argued this is a flimsy basis for the right to abortion, and that premising it on the equal protection clause, and arguing that restrictions on abortion unconstitutionally burden women without affecting men, would make for a firmer foundation.
In particular, this reevaluation could lead to increased abortion access for poor women. In a number of states, including Connecticut, New Mexico, New Jersey, and Alaska, state constitutional guarantees to equal protection have been used to mandate that Medicaid cover medically necessary abortions.
It’s unlikely that the Court will overturn Harris v. McRae, a 1980 case upholding the Hyde Amendment, Congress’s ban on most federal funding for Medicaid abortions, anytime soon. But an equal protection reevaluation of abortion rights is at least somewhat likely, and could lay the groundwork for a right to abortion coverage in the medium to long run.
"Supreme Court justices increasingly over the years have recognized that the right to choose when and whether to bear children is important not just to their individual liberty but to women's equality," Johnsen says. "I think odds are very good that a majority of justices in the future will hold that the right is protected by the constitutional right to both liberty and equal protection."
And that’s just the start
Even outside the issues of imprisonment, capital punishment, elections, gerrymandering, and abortion, there are places where the Court could move. Karlan raises the possibility of a "civil Gideon" — a ruling that would create a right to counsel in civil cases, so poor people are guaranteed a lawyer if they need to sue their landlord or their employer; the name comes from Gideon v. Wainwright, which established the right to a government-provided attorney in criminal cases.
Hailly Korman, a principal at Bellwether Education Partners and a veteran education attorney, expressed hope that the Court could overturn San Antonio Independent School District v. Rodriguez, the 1973 decision that concluded, 5-4, that there was no federal right to education.
"With a liberal majority, I don't think it's implausible," Korman explains. " I think there is a very strong case to be made that some minimum of education is a necessary prerequisite to enable people to access and wield all of their other rights. If I could change one thing about our federal jurisprudence, this would be it."
Berkeley’s Simon notes that a more liberal Court could push back on past Court decisions about policing expanding the scope of searches and seizures — like Whren v. United States, which Simon alleges "constitutionalized racial profiling" by letting police stop cars whenever they want as long as there's probable cause for a traffic violation; or Atwater v. City of Lago Vista, which held that police could arrest people and take them for jail for driving without a seat belt, a crime that can't be punished with jail or prison time — and thus send a signal to police to use less aggressive techniques, particularly in policing communities of color.
David Strauss, a professor at University of Chicago Law School, argues that focusing on classic Supreme Court issues that split on liberal/conservative lines (like abortion) distracts from areas of law that might prove to be bigger parts of the Court's jurisprudence, like "the relationship between free speech and both government secrets and individual privacy," and cyber harassment.
But even if a small fraction of the changes detailed above had been incorporated into a new, more liberal Court’s jurisprudence, the consequences could've been momentous. The Scalia vacancy and Kennedy’s coming exit opened the door for liberals to rethink American law in dramatic ways, the implications of which were only beginning to be teased out before Trump's win shut the door on that future, possibly for good.
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