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Sept. 22, 2020, 10:37 a.m. EDT

3 ways a 6-3 conservative Supreme Court would shift

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By Morgan Marietta

If the late Justice Ruth Bader Ginsburg is replaced this year, the Supreme Court will become something the country has not seen since the justices became a dominant force in American cultural life after World War II: a decidedly conservative court.

A court with a 6-3 conservative majority would be a dramatic shift from the court of recent years, which was more closely divided, with Ginsburg as the leader of the liberal wing of four justices and Chief Justice John Roberts as the frequent swing vote.

As a  scholar of the court  and the  politics of belief , I see three things likely to change in an era of a conservative majority: The court will accept a broader range of controversial cases for consideration; the court’s interpretation of constitutional rights will shift; and the future of rights in the era of a conservative court may be in the hands of local democracy rather than the Supreme Court.

The court takes only cases the justices choose to hear. Five votes on the nine-member court make a majority, but  four is the number required to take a case .

If Roberts does not want to accept a controversial case, it now requires all four of the conservatives – Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas – to accept the case and risk the outcome.

If they are uncertain how Roberts will rule –  as many people are – then the conservatives may be not be willing to grant a hearing.

With six conservatives on the court, that would change. More certain of the outcome, the court would likely take up a broader range of divisive cases. These include many  gun regulations  that have been challenged as a violation of the Second Amendment, and the  brewing conflicts  between gay rights and  religious rights that the court  has so far sidestepped . They also include  new abortion regulations  that states will implement in anticipation of legal challenges and a favorable hearing at the court.

The three liberal justices would no longer be able to insist that a case be heard without participation from at least one of the six conservatives, effectively limiting many controversies from consideration at the high court.

The rise of a 6-3 conservative court would also mean the end of the expansion of rights the court has overseen during the past half-century.

Conservatives believe constitutional rights such as freedom of religion and speech, bearing arms, and limits on police searches are immutable. But they question the expansive claims of rights that have emerged over time, such as privacy rights and reproductive liberty. These also include  LGBTQ rightsvoting rightshealth-care rights , and any other rights not specifically protected in the text of the Constitution.

The court has grounded several expanded rights, especially the right to privacy, in the 14th Amendment’s  due process clause : “…nor shall any state deprive any person of life, liberty, or property, without due process of law.” This sounds like a matter of procedure: The government has to apply the same laws to everyone without arbitrary actions. From the conservative perspective, courts have expanded the meaning of “due process” and “liberty”  far beyond their legitimate borders , taking decision-making away from democratic majorities.

Consequently, LGBTQ rights will not expand further. The  line of decisions  that made Justice Anthony Kennedy famous for his support of gay rights,  culminating in marriage equality in 2015 , will advance no further.

Cases that seek to outlaw capital punishment under the Eighth Amendment’s ban on “ cruel and unusual punishments ” will also cease to be successful. In 2019 the court ruled that  excessive pain caused by a rare medical condition  was not grounds for halting a death sentence. That execution went forward, and further claims against the constitutionality of the death penalty will not.

Challenges to voting restrictions will likely also fail. This was previewed in the  5-4 decision in 2018  allowing Ohio to purge voting rolls of infrequent voters. The Bill of Rights  does not protect voting as a clear right , leaving voting regulations to state legislatures. The conservative court will likely allow a broader range of restrictive election regulations, including  barring felons from voting . It may also limit the census enumeration to citizens, effectively  reducing the congressional power of states that have large noncitizen immigrant populations .

Birthright citizenship , which many believe is protected by the 14th Amendment, will likely not be formally recognized by the court. The court has never ruled that anyone born on U.S. soil is  automatically a citizen . The closest it came was an 1898 ruling  recognizing the citizenship of children of legal residents , but the court has been silent on the divisive question of children born of unauthorized residents.

The  conservative understanding of the 14th Amendment  is that it had no intention of granting birthright citizenship to those who are in the country  without legal authorization .

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