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'Bitter Disappointment': Conservatives Seize on Supreme Court Losses to Push Trump's Reelection | National Law Journal

Legal conservatives point to recent rulings on DACA, LGBTQ rights and abortion to argue that, despite President Trump's best efforts, not enough has been done to shift the Supreme Court in their favor.
John Roberts U.S. Supreme Court Chief Justice John Roberts Jr. Photo: Diego M. Radzinschi/ALM

When the Senate confirmed President Donald Trump’s 200th federal judge last week, legal conservatives cheered the remarkable milestone. But recent rulings from the U.S. Supreme Court keeping protections for “Dreamers,” LGBTQ rights in the workplace and Monday’s decision striking down a Louisiana abortion clinic law have those on the right arguing Trump’s judicial work is far from done.

Trump has reshaped lower courts and appointed Justices Neil Gorsuch and Brett Kavanaugh to the bench, shifting the court’s ideological balance to the right. However, Chief Justice John Roberts—widely viewed as the bench’s new center vote—has joined liberal justices to create majorities in cases where conservatives hoped to win, clouding their other achievements on the courts.

It’s highly likely that whoever wins the November presidential election will get to select at least one justice, with two members of the court’s liberal bloc—Ruth Bader Ginsburg, 87, and Stephen Breyer, 81—at retirement age.

Conservatives who have been able to successfully run on the courts are energized to do so again, citing their recent losses as reason they need to build an even stronger majority on the Supreme Court.

“Returning the courts to the rule of law has always been a very motivating issue for those on the right,” said Carrie Severino, president of the conservative Judicial Crisis Network. “We’ve long experienced the courts usurping the legislative process to simply come to legal results. This term, unfortunately, is no different. I think that’s something that will continue to motivate voters.”

‘Just Shocked’

Trump recently announced he would once again release a list of potential justices to tap to the U.S. Supreme Court, repeating a move from his 2016 campaign that many view as having won over otherwise wary Republican voters.

Despite its past success, that strategy is now facing fresh skepticism. Sen. Josh Hawley, a Republican member of the Senate Judiciary Committee, recently told Politico he believes Trump should not release another list if it’s drafted in the same way as prior iterations, arguing religious conservatives should play a bigger role in the process.

“I think they feel just shocked at what’s going on with the Supreme Court, so I think it’s vital that they be heard from and involved in this process,” said Hawley, who previously clerked for Roberts.

Other conservatives, including Leonard Leo of The Federalist Society, who was involved in the nominations of Gorsuch and Kavanaugh, have defended the process. Severino on Monday said Trump releasing an updated list is “exactly the correct thing for the president to do.” And she predicted the new version will feature a number of Trump’s nominees who are currently sitting on federal courts.

Conservatives acknowledge that a bench with Roberts, who they argue is ruling to protect the reputation of the court over what the law calls for, is an improvement on past versions of the court without a Republican-appointed majority. Statements from right-wing groups issued in the wake of Monday’s abortion ruling drove home the importance of ensuring the court’s ideological balance is left up to the GOP and not Democrats in the coming years.

“It is imperative that we re-elect President Trump and our pro-life majority in the U.S. Senate so we can further restore the judiciary, most especially the Supreme Court. President Trump, assisted by the pro-life Senate majority, is keeping his promise to appoint constitutionalist Supreme Court justices and other federal judges,” read one such statement from Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List, which called the abortion ruling a “bitter disappointment.”

“This is evidenced by Justices Gorsuch and Kavanaugh, who joined with Justices Thomas and Alito and dissented from today’s ruling,” Dannenfelser added.

Liberal groups on Monday took the win on abortion access, but warned future victories may not be achievable if Trump is allowed to fill future court vacancies.

While Monday’s decision threw out the Louisiana abortion law, Roberts leaned on the court’s prior ruling against a nearly identical Texas law where he was in the minority. He invoked stare decisis—the legal doctrine against overturning prior precedent—in authoring his concurring opinion, splitting from the court’s liberal arm’s reasoning finding the law unconstitutional.

“The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents,” Roberts wrote Monday.

Left-leaning groups pointed to Roberts’ opinion to argue he might not rule their way in future abortion cases, and that presumptive Democratic nominee Joe Biden must win in November to guard the court from going even further to the right.

“The increased public pressure on the court has once again caused Roberts to side with the liberals, but his opinion walked a very fine line and may pave the way for a much less favorable outcome on abortion rights in the very near future,” Brian Fallon, executive director of the progressive group Demand Justice, said in a statement. “None of the victories this term leave enough breathing room for progressives to get comfortable. If Trump is able to nominate an additional justice, that person will vote like Brett Kavanaugh, not John Roberts. It could not be more clear that the future of the court is hanging in the balance this year.”

Biden has not gone as far as Trump in releasing a list of possible Supreme Court nominees, but has said he would tap a Black woman for the court.

The Supreme Court rulings haven’t all been bad for conservatives. The court on Monday rejected a challenge from federal death row inmates over U.S. Attorney General William Barr’s new federal execution protocol, which was upheld earlier this year by a pair of Trump appointees on the U.S. Court of Appeals for the D.C. Circuit.

Roberts on Monday also wrote a majority opinion that said Trump has the power to fire the director of the independent Consumer Financial Protection Bureau at will and not solely for cause as originally required.

While the chief justice included an interpretation of severability—“It has long been settled that ‘one section of a statute may be repugnant to the Constitution without rendering the whole act void’”—that liberals viewed as a sign the justices won’t strike down the entire Affordable Care Act in a separate case pending before the court, they still decried the CFPB ruling as a whole.

“The far right just scored a victory in its decades-long battle to destroy the social safety net,” Marge Baker, executive vice president for policy and program at the progressive group People For the American Way, said in a statement. “It’s critical that we vote in November for a president and senators who will nominate and confirm fair-minded judges who won’t rule exclusively in favor of big corporations in this way.”

Read more:

Thwarting Trump, Roberts Guards the Supreme Court’s Reputation, and His

Roberts Sharply Counters Criticism of His Vote Striking Down Louisiana Abortion Law

Roberts Is Key Vote, as US Supreme Court Blocks Louisiana Abortion Clinic Law

Fractured SCOTUS Ruling Keeps CFPB Alive, But Gives More Oversight to President

Chief Justice Roberts Leads Ruling Against Trump’s Effort to End DACA

Gorsuch, Alito and Kavanaugh Tangle Over Textualism in Major Win for LGBT Workers

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