I’m deeply skeptical.
The GOP has controlled the Supreme Court since I first got involved in politics. This was twenty years ago. In that time, I have watched John Roberts replace William Rehnquist (2005), Samuel Alito replace Sandra Day O’Connor (2006), Neil Gorsuch replace Anthony Scalia (2017) and Brett Kavanaugh replace Anthony Kennedy (2018). Clarence Thomas is the only conservative member of the Supreme Court who is still there. Otherwise, there has been a complete turnover in my adult lifetime.
For most of my adult lifetime, the conservative narrative was that Anthony Kennedy was the libertarian swing vote on the Supreme Court. Anthony Kennedy was the reason that social conservatives had amassed a solid losing streak on the court in big decisions like Lawrence v. Texas (2003) which legalized sodomy and most famously with Obergefell vs. Hodges (2015) which legalized gay marriage. There were other important decisions like Grutter v. Bollinger (2003) and Fisher v. Texas (2016) which upheld affirmative action. In the Fisher case, Anthony Kennedy upheld affirmative action. In Arizona v. United States (2010), Kennedy was joined by John Roberts in striking down Arizona’s SB 1070 immigration law.
Donald Trump was elected in 2016, Anthony Kennedy retired and Gorsuch and Kavanaugh were confirmed and were supposed to consolidate a solid conservative majority on the Supreme Court. Instead, we got the 6-3 Bostock v. Clayton County (2020) decision this summer in which Gorsuch and Roberts sided with Ginsburg, Breyer, Sotomayor and Kagan in reading transgenderism into the Civil Rights Act of 1964. The Supreme Court with its solid conservative majority also finally had the chance to strike down Roe in June Medical Services v. Russo (2020), but instead John Roberts joined Ginsburg, Breyer, Sotomayor and Kagan in another pivotal 5-4 decision which struck down a Louisiana abortion law.
In replacing Ruth Bader Ginsburg, Amy Coney Barrett will soon become the fifth Republican nominee who has been confirmed to the Supreme Court in my adult lifetime. There will be a 6-3 Republican-controlled Supreme Court. Are we supposed to be excited about Barrett joining the Supreme Court and replacing Ginsburg? What is there to be excited about when the Supreme Court even with Gorsuch and Kavanaugh on it has delivered nothing but a string of bitter defeats for social conservatives?
Every single time the Supreme Court has been given the chance to rule on a major social issue whether it is abortion, affirmative action, sodomy, gay marriage, transgenderism, disparate impact or immigration it hasn’t delivered any meaningful wins for social conservatives. Instead, liberals have walked away with far more victories from the “conservative” Supreme Court – on sodomy, abortion, gay marriage and transgenderism. The same is true the Republican Congress. It never delivers any wins for social conservatives. It delivers only legislative victories on things like tax cuts or the First Step Act. Politicians come and go. Judges come and go. This fundamental dynamic never changes.
Maybe it will be different this time though with Amy Coney Barrett on the Supreme Court with a 6-3 Republican majority? Based on what I have seen, I have every reason to doubt it. It is more likely that Roberts and Gorsuch will just “evolve” into liberals like we saw in the Bostock decision. When the conservative legal movement put the justices on the Supreme Court and finally had the majority that could have made a difference on abortion and transgenderism, it went missing on the base.
I’m happy to be proven wrong. I will be pleasantly surprised if a 6-3 conservative Supreme Court with Amy Coney Barrett on it actually doesn’t just deliver more social liberalism. If this majority doesn’t overturn Roe or change course on social issues, there is no reason to believe one ever will.