In these rough and tumble Donald Trump days, it sometimes feels as if the angry right is on the upswing in American life. However, in the last few years on the Supreme Court, there’s a definite feeling that the left (or at least the non-right) is winning the culture wars. And when your win comes from the Court, you’ve got it in writing and in legal precedent.
The biggest Supreme Court ruling on the abortion question before this Monday was some 16 years before. That 2000 decision was a Nebraska ban on partial-birth abortion, which the Court said violated a woman’s constitutionally-protected right to choose.
Monday’s case struck down Texas’s abortion restrictions as unduly burdensome on women and on clinics. Both these majority opinions were written by Justice Stephen Breyer. In the case of this week’s Whole Woman’s Health v. Hellerstedt, frequent swing-voter Justice Anthony Kennedy went with the more liberal side and voted to the overturn the Texas law. The usual suspects Justices Clarence Thomas and Samuel Alito dissented, as did Chief Justice John Roberts.
Kennedy is now the wild card on the Antonin Scalia-free court, even more so than before. In Whole Women’s Health he joined Breyer in concluding that the Texas law was excessively restrictive.
Every clinic closed under those laws may not suddenly spring back to life, but activists are optimistic that the numbers will now be able to increase. This will make other states take a second look at their laws, to see if they gel with the Court’s mandate. Today, Mississippi and Wisconsin were ruled by the Court to have burdensome abortion rules as well, and the states’ appeals to keep their laws were rejected.
It’s been a busy time for the Court. The previous week, in a 4-3 ruling, the Court said that the University of Texas may use race as a factor when considering whether to accept potential students. This wasn’t a free pass for UT, which was sued by one Abigail Fisher in a case that first hit the Supreme Court in 2013. UT may use race as only one factor in the admissions procession was basically what was concluded in 2013, but the case bounced back to lower courts and then the Supreme Court again. In this Court–with Justice Elena Kagan recused–affirmative action was upheld as legitimate.
Whole Women’s Health and other cases bring up the question of just where the Court resides in terms of ideology. After all, Obamacare was upheld in 2012, setting a precedent that stands in spite of objections. (Whether you consider healthcare to be part of the “culture war” is another question.) And in the momentous Obergefell v. Hodges last year, gay marriage was made the official law of the land, no matter how social cons might kick and scream.
Though Scalia himself was often very good on the Fourth Amendment–he was deeply conservative on gay issues. He was similar on abortion and on affirmative action. His death has shifted the Court on the last two issues significantly and will keep it on a leftward tilt.
Few prominent Republican politicians appear willing to exert too much energy fighting *Obergefell*.
Few prominent Republican politicians appear willing to exert too much energy fighting Obergefell. They may express dutiful objection to it, or even–as Donald Trump has done–suggest that they might appoint Supreme Court Justices who would magically overturn it. But it is clear that priorities have shifted for the mainstream right a bit. The LGBT community has emerged victorious to an extent that did not seem possible just a few years ago.
Abortion is still a motivating cause for Republicans, but they’ve accepted GOP presidential nominees of late who have only recently jumped on the pro-life bandwagon. Both Trump and former Gov. Mitt Romney were for a woman’s right to choose in the start of the century, and then changed their minds in recent years.
Whether President Obama’s nominee of Merrick Garland has a chance of getting all the way to the Court is one question. His stances on the hot culture war issues of the day is another. Garland is aggressively moderate in many ways, but his stance on abortion remains uncertain. If he leaned anti-abortion, that might motivate the Republican Senate to give him a chance at getting on the Court.
None of these battles–healthcare, affirmative action, abortion or even gay rights–are entirely over. But the right’s cultural brigades have suffered some serious defeats in the last 15 years, not the least in the highest Court. With Trump falling in the polls, and Hillary Clinton holding steady, the defeats may keep coming on the right, for many years to come.