By Jose Ivan Cazares
LOS ANGELES — Abortion, affirmative action, immigration policies and anti-discrimination laws will likely be swayed by conservative ideals for years to come if President Donald Trump’s Supreme Court nominee is confirmed by the U.S. Senate.
Experts like Jeb Barnes, a professor of political science at USC, and Navid Dayzad, a Los Angeles immigration attorney, speculate that whoever the U.S. Senate confirms from Trump’s short list will shift the court’s opinions to the right.
“I think a big effect of the court moving to the right is not just the decisions the court will make, but the willingness of conservative groups to try to drive their political agenda through the courts,” Barnes said. “I think the uncertainty of Justice Kennedy’s vote on some issues sounded a cautionary note for some groups seeking massive policy change through the courts.”
Both experts said there is likely to be a rise in cases challenging anti-discrimination policies by appealing to the First Amendment, which guarantees freedom of religion and free speech.
“I think we need to keep an eye on how far the court will go in using the First Amendment in this way,” Barnes said. “As Justice Kegan said in her descent, almost every regulation involves speech in some form. We define free speech very broadly and if free speech gives you an exit strategy from regulatory requirements, including anti-discrimination rules, that’s going to have various effects on local communities.”
In Masterpiece Cakeshop V. Colorado Civil Rights Commissions, for example, the Supreme Court ruled 7-2 in favor of Jack Phillips, a baker who refused to sell a wedding cake to a gay couple.
The court’s opinion, written by Justice Kennedy, stated that the LGBT community is protected from discrimination. However, it argues that it was the baker who was being discriminated against by those trying to force him to sell and upheld his right to refuse service to the couple.
Phillips’ attorney successfully argued that his client didn’t discriminate against the couple because he refused to participate in a religious ceremony that went against his morals, but offered to sell them other goods.
“This is a real concern,” Dayzad said. “We have laws that protect minorities, LGBT people in particular. These laws are important because minorities are, by definition, less powerful and can be stomped on. These protections are at risk because courts will have to weigh these protections against individuals’ First Amendment rights.”
Barnes said that while many might not consider them high-profile cases, people within his professional circle are looking at cases dealing with organizations like the Environmental Protection Agency’s ability to implement change on the local level.
“The people on Trump’s list are more likely to read several programs very narrowly and prevent agencies from trying to solve problems like pollution in a more proactive way,” Barnes said.
He said affirmative action policies are also likely to see change. He said although Proposition 209 passed in 1996 banning racially based affirmative action in California’s higher education system, there are many government assistance programs that take race into account that could cease to exist.
“In the past, Chief Justice Roberts has shown to be quite suspicious of racially based affirmative action, so I think that will be an area to keep an eye on,” Barnes said.
Dayzad said affirmative action laws are designed to protect racial minorities from unconscious prejudice and are likely to be dismantled under a conservative court.
“A judge like Judge Kavanaugh is likely to support the dismantling of affirmative action laws,” Dayzad said. “Another group of people who will be hit with discrimination are women when it comes to their rights to decide over their own bodies and whether or not to carry a pregnancy to term.”
Barnes also pointed to abortion as a major social issue that is likely to make its way to the Supreme Court in the form of a challenge to Roe V. Wade. However, he pointed out that California and other blue states wouldn’t be as affected if Roe V. Wade was overturned because the case deals with states’ rights to regulate abortion.
Immigrant communities are also likely to be impacted by a change in the court’s opinions. Dayzad pointed to Trump’s “zero-tolerance” policy at the southern border and his travel ban placed on several majority Muslim countries as blatant acts of discrimination that are likely to be supported by a conservative-controlled court.
Dayzad said the court’s decision to defer to the president’s executive power in the travel ban case is an early example of a majority conservative court failing to check the president’s power.
“The clear similarity between the travel ban and the crisis at the southern border is an attitude that immigrants are unwelcomed in the United States and that immigrants are bad for the United States,” Dayzad said.