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Were it possible to believe anything he said, it might seem reassuring that President-elect Donald Trump promised that marriage equality is settled because it was settled by the Supreme Court. Of course, anyone who has been paying attention is aware that his long history of shifting policy positions makes reliance on any particular statement functionally futile. Moreover, it’s hard to take him at his word, when he previously promised that he’d appoint a justice to overturn Obergefell v. Hodges, and when his published short list of Supreme Court nominees includes William Pryor, who went out of his way to argue in support of Texas’ anti-sodomy law circa 2003. Further, the idea that something is settled because the Supreme Court settled it runs directly contrary to his assertion in the same interview that Roe v. Wade should be overturned.
In the absence of a reliable agenda from the incoming administration, it is essential to understand the structural barriers to changing laws and policies. The ease with which rights and protections that we currently enjoy as a nation can be eliminated depends on how those rights and protections originated. When prioritizing worries, it’s essential to understand the relative security of different measures.
The Supreme Court and The Constitutional Questions
Although it may feel like the entire world shifted with the most recent election, as of this moment, the election does not fundamentally change the balance of the court. Although the President-elect will choose a replacement for Justice Scalia, this appointment is extraordinarily unlikely to alter the composition of the court, particularly on the most salient issues of the moment. Scalia ruled against equal marriage, and Scalia long held that the Constitution did not protect access to abortion. The promised ideological replacement can hold those exact same opinions, and nothing changes; equal marriage remains the law of the land, while abortion remains legal, but under attack.
Of course, this may very well not be the only Supreme Court vacancy during the next administration. Even if the Court composition were to change, though, and one of the stalwart liberal voices were to be replaced by a more conservative jurist, this would not signal an automatic loss of rights. Stare decisis, to stand by things decided, is among the most fundamental judicial principles; in the absence of a new or revised question, the court will typically defer to its previous decisions. Even a changing court would be required to reconcile any decisions with those that have come before. Ultimately the Supreme Court gets to select its cases and issue its opinions; it could choose to take any case and revisit any precedent, which leaves observers with limited predictive powers. Even with a revised Court, though, given the recency of the Obergefell decision and the clarity of the ruling, it seems unlikely that equal marriage will be revisited. However, as has long been the case, abortion rights will continue to be challenged; a change in the composition of the Court would not ensure that the fundamental right to abortion is overturned, but would put it in jeopardy.
Of course, ultimately, the Supreme Court is tasked with interpreting the Constitution; were the Constitution to be amended, the Court’s interpretations would change accordingly. Amending the Constitution is intentionally incredibly challenging, and despite recent calls for amendments, seems not terribly likely. There are two ways to propose an amendment: either Congress can propose an amendment, with two thirds majority support in both the House and Senate, or two-thirds of the state legislatures can call for a Constitutional convention. (Note that the second approach has never happened; as a practical matter, Congress does all of the calling for amendments). In either case, the proposed amendment must then be ratified by three-fourths of the States. This is not an impossible hurdle, but it’s certainly challenging, and therefore seems unlikely to become an issue over the course of the next administration.
Congress and The Legislative Questions
With control of the legislature comes control of the laws. Republicans control the House and the Senate, and will control the legislative agenda; for those concerned about traditionally Democratic causes, the next few years are likely to be heartbreaking. Progressively-inclined people might have taken a bit of solace in Mitch McConnell’s assertion that it is important not to “misread [the] mandate,” before remembering that if Mitch McConnell is the voice of reason, standards have changed dramatically. From a structural standpoint, there are three checks on legislation: Republican party infighting, the Constitution, and the Democratic minority. Although these factors might slow the pace of regression, the harm is likely to be tremendous.
As concerns go, the Affordable Care Act lives at the top of the list for many people. Republicans have been fighting to overturn the ACA since its inception, and they no longer have a President with veto power standing in the way. Given the rhetoric, it seems almost inevitable that the ACA will disappear. For the 22 million people who are at risk of losing health insurance with repeal, perhaps the most important question is what will come to replace it. There’s no consensus or clear vision at this point. Several policy proposals have been released, offering reduced benefits at reduced costs; however, the scope of the reduction could vary tremendously, depending on which faction of the Republican party gains momentum.
Beyond overturning existing laws, though, the potential for new and abhorrent laws feels nearly limitless. The Democrats aren’t obstructionist enough to filibuster every proposal in the next two years, which means that they will likely have to accept bitter compromises to move anything forward. Equal marriage may be settled, but so-called religious liberty laws seem ripe for action at the Federal level, in a world where the Republican party has such limited opposition. (The debate is already underway; up until last week Republicans were pushing the Russell amendment, which would have expanded religious exemptions to existing discrimination laws. The amendment is dead, but the sentiment is not, and this sort of legislation is likely to reappear in the future).
The Presidency and Executive Actions
The Presidency comes with tremendous power, and in the face of Congressional inaction, President Obama has used his executive powers to advance a progressive agenda, protecting transgender federal employees from workplace discrimination and granting limited protections to children who arrived in the US without documentation. However, this is the area where any protections are least secure; the incoming President can revoke every executive action as readily as President Obama could issue them, and likely will.
The President-elect has pledged to revoke all “unconstitutional executive orders,” but it’s impossible to understand what this means, exactly, as unconstitutional seems to be a standard established in his mind. The Presidency comes with many powers, but the Supreme Court still serves as the fundamental arbiter of whether actions are unconstitutional. Regardless, in this context, unconstitutional is a marketing statement rather than an objective classification, and either way it doesn’t matter. The President-elect can revoke any executive action he wants.
In addition to the power to issue and rescind executive orders, the President selects the leadership and sets priorities for the administration. The current administration has taken a number of positions supporting the LGBT community, from refusing to defend the Defense of Marriage Act (before the Supreme Court deemed the law unconstitutional) to asserting that prohibitions against sex discrimination in the Civil Rights Act of 1964 encompass claims of discrimination on the basis of gender identity.
Recently, the Supreme Court agreed to hear oral arguments in the Gloucester County School Board v. G.G. case, regarding the right of a transgender student to use the restroom consistent with his gender identity. Among the central questions is the extent to which the Court should defer to the administration’s guidance on this subject. However, if the new administration were to revoke the guidance at issue in advance of the oral arguments, this question would be rendered moot. In that situation, the Supreme Court may address the substantive issue, or may send the case back to the lower court, leaving the fundamental issue to be resolved another day.
The new administration will have equal opportunity to establish policy priorities, but there is little reason to believe that protecting the LGBT community will be among these priorities. In turn, a void in leadership at the Federal level may create greater space for State legislatures to enact harmful laws, such as laws restricting access to bathrooms or allowing businesses to discriminate against queer people.
The legal landscape is bleak. At least for the immediate future, the Supreme Court will continue to provide an institutional check — but the Legislative and Executive Branches move more quickly, and the short-term damage to families that are torn apart and people who lose access to health care will be irreparable. Some States may move forward with protections for the LGBT community, but a fragmented State approach leaves many without protections.
Despite the political challenges, and the very real ways in which policy decisions affect people, now is not the time to become despondent. The potential for such a regressive Federal government seems so disheartening because of the tremendous progress over the past few years, but the administration does not control and cannot contain the progress. Now is the time to take protective actions and organize, and to support those organizations that will help in the battle. In the words of the late, great Senator Paul Wellstone: “Stand Up! Keep Fighting!”
Thank you for this clear and calm analysis. I suspect most of the fight is going to be at the state level.
Thank you Jessica and AS for this excellent analysis.
Thank you for this!
This was well-organized and very clearly articulated, thanks for this. If Ginsburg, Kennedy and Breyer can just hang on for four more years, even if Trump appoints a Scalia-esque replacement, LGBT rights will at least be safe there. Kennedy is the ultimate swing vote on the court, and he is well-known to be progressive on those issues. On abortion, however, he’s much more conservative, and he also voted with the right in Shelby County, so voting rights could also be at risk.
I miss Sen. Wellstone. :(
Thank you for this thoughtful analysis!
Thank you, Jessica! Good to see the legal eagle is back.
What would be the effect if the Gavin Grimm case does not go our way either because of packing the court or otherwise? This is more my worry because there hasn’t been a legal precedent set for that case as far as I can find.