It is brutal to contemplate the battles the retirement of Anthony Kennedy will trigger. A U.S. Supreme Court comprised of John Roberts, Samuel Alito, Clarence Thomas, Neil Gorsuch and the second Donald Trump nominee will work dramatic changes in American constitutional law.
Roe v. Wade will almost certainly be overturned. If not, it’ll be completely gutted. Obergefell, the gay marriage case, will either be overruled outright, or a gaping exemption will be run through it making lesbians and gay men overt and pervasive second class citizens. Race-based affirmative action will be ruled impermissible. Federal housing discrimination laws will be invalidated. Purported national security detainees will be ruled strangers to the rule of law. Political gerrymandering will be rendered permanently incontestable. We’ll return to equality concepts rejected a half century ago.
It is also hard to be sure we’re up to the fight. We’ve never been more polarized. Many have lost faith in the American promise. The president has dramatically diminished confidence in our institutions and our decency. Democrats have few tools to combat the impending disaster. And they always fight as if they don’t mind losing. Elections have consequences. And electing Donald Trump produces wounds deep, and lasting, and un-American.
It is also stunning to think what the about-face will mean in North Carolina. The U.S. Supreme Court will rule, quickly, that the constitution no longer speaks to abortion rights, gay rights and gay marriage. That means, in the months ahead, the North Carolina General Assembly will, broadly speaking, have its head on such crucial, defining and constitutive matters.
So, given their habits, it’s reasonable to assume they will call themselves into special session, with no real announced agenda, no actual notice or meaningful debate, and legislate our core human liberties. We can expect to open the paper one morning and learn, lo and behold, that abortion is illegal across North Carolina. We’ll read, the next day, that it is legal to fire a school teacher because she is lesbian or transgender. And then we’ll be informed that no one in North Carolina has to do business with a homosexual. Brace yourself.
But, you might note, I said “broadly speaking” when I mentioned the new authorities to be awarded to the thoughtless and bullying brigands of our General Assembly. When the federal high court trashes cases like Roe and Obergefell it will conclude, only, that the federal Constitution is untroubled by gay bashing and the ending of reproductive freedom. That’s all the U.S. Supreme Court has power to do.
But that leaves, ironically, the North Carolina Constitution. Litigants will immediately challenge new North Carolina abortion and sexual orientation laws in the state courts under the provisions of the state charter. Those rulings will then be appealed to the North Carolina Supreme Court. And if our state justices rule that traditional abortion and gay rights should be given protection under state constitutional law, the Trump court in Washington cannot say them nay.
Our high court, at present, is 4-3 Democratic. As important, under present terms, it will remain majority Democratic until 2022, and likely longer – since the next upcoming elections will be for seats held by Republicans. I think I know enough about Democratic politics to predict that no justice can vote against Roe and Obergefell and expect to be re-nominated or assisted by his or her party. So, in my view, no matter how much Phil Berger and Tim Moore may howl, the North Carolina Supreme Court will assure gay rights and abortion rights under the Tar Heel constitution. On this front, at least, by sowing the political wind in the state judiciary, Republicans will reap the whirlwind.
Of course, you may say, then our Republican overlords will try to stack the court – adding seats, or whatever. They have already proven to be ingenious at attacking the independence of the judiciary. But such a move, no doubt, would raise ample separation of powers questions – questions presented, ultimately, to the Democratic-majority N.C. Supreme Court. Good luck.
Then, finally, imagine what our North Carolina Supreme Court elections are to become. Seven people will decide, on their own, whether the ten million of us enjoy reproductive freedoms and equal status as human beings. How much money will be spent on those contests? What will the campaigns look like?
When we cast constitutive traditions aside, it’s not easy to predict what will arise to replace them. But I’m guessing we’re going to be surprised, and many will be mad.
Gene Nichol is the Boyd Tinsley Distinguished Professor of Law at the University of North Carolina.