Counting My Chickens Before They’re Hatched

An enormous amount of digital ink has been spilled in the last week or so about the coming Supreme Court vacancy and who might fill it and how that will play out.  And these are truly momentous questions involving nuances of political strategy that could change the balance of the Senate political make-up.  In other words, really hot stuff and absolutely chock full of fat-soluble vitamins.

But let’s jump the gun and talk about some really exciting things.  Let’s assume for the sake of argument that the Senate manages to keep their act together and approve an actual conservative replacement for Anthony Kennedy.  And let’s further assume for the sake of argument that John Roberts isn’t the Manchurian Justice that he seemed to be during the Obamacare deliberation.  Then, what are the possible constitutional questions that could allow the new conservative majority to show its quality?  Let’s make a list.

  • I think the least likely early result of the new majority would be a test of Roe v. Wade. This is the thermonuclear case and I believe it will be a while before SCOTUS tackles something so controversial.  After all, energizing the female vote against Republicans during the beginning of a conservative court majority would threaten the ability of a very narrow Senate majority right before the mid-terms.  So I think this will wait at least a year or more.
  • I think the most likely early test of this new majority will be a revisiting of the gay marriage vs. religious freedom question. And here is where I think that the Court will score an easy victory.  I would be shocked if the Court does not hand a complete victory to religious tradespeople who object to being forced to participate in homosexual weddings.  In my estimation this will be a great morale booster for conservatives and a well-deserved rebuke for the brown shirts in the LGBTQ
  • Removing the Constitutional mandate for gay marriage would be a very bold move. Seeing that this would directly attack the precedent set by Anthony Kennedy just a few years ago it would represent a refutation of the narrative that has been developing in the Courts for the last twenty five years.  But I think it would be the smart thing to do.  Unlike Roe v. Wade, the shortness of time that has passed since the precedent was set limits the disruption caused by allowing the individual states to pass their own laws on either side of this issue.  The Federal government could even restore the Defense of Marriage Act if it was politically expedient.  And there is a real grass roots appeal to allow states that don’t favor the homosexual life style to have their say.
  • Questions about the Constitutionality of Affirmative Action should be front and center in this Court. Even past verdicts by the Supreme Court when more liberal justices were represented recognized the contradictory nature of a clearly discriminatory practice sanctioned by the United States Government.  It is long past the point where reverse discrimination makes even bad sense.  And the way the Left has used it to weaponize identity politics against the white population needs to be shut down before it does anymore harm to the unity of the country.
  • The constitutionality of the Patriot Act and other post 9-11 security over-reaches need to be reconsidered. The recent actions by the FBI and the other intelligence gathering agencies highlights the runaway nature of these intrusions on privacy and an originalist interpretation will go a long way toward re-evaluating the current imbalance favoring law enforcement over due process.
  • And a final major item that could be adjudicated is the Constitutional protection for homosexuality. That was another constitutional protection discovered by Justice Kennedy.  Here is another social question that used to be a state matter until the Supreme Court overstepped.

So, this merely my speculation.  What do you think?  What’s your logic?  Leave a vote.