Noah Feldman wrote a smart and thoughtful article for the New York Review of Books about the likely rulings of a Supreme Court with an activist conservative majority, ansent any moderating Justice.

It’s an interesting read. Let me know if it is behind a paywall and I will post more of it.

He writes:

“If Donald Trump’s nominee to replace Justice Anthony Kennedy, who announced his retirement on June 27, is confirmed by the Senate, the Supreme Court will have a stable majority of conservative justices for the first time since before the New Deal. Kennedy’s successor will be Trump’s second Surpreme Court pick and may not be his last. Justice Ruth Bader Ginsburg, who is eighty-five, clearly wishes to stay on the Court as long as Trump is president. So does Justice Stephen Breyer, who turns eighty later this year. But neither is immortal. Especially if Trump is reelected, he could potentially replace both of these justices with staunch young conservatives.

“The current Court’s four consistent conservatives are all substantially younger than Kennedy, Ginsburg, and Breyer. The oldest, Clarence Thomas, is sixty-nine. Samuel Alito is sixty-eight, Chief Justice John Roberts is sixty-three, and Neil Gorsuch is just fifty. All are self-described constitutional originalists; all favor interpreting statutes based on text rather than their intention; and all have strongly pro-business judicial records. Should Trump appoint a fifth conservative—to say nothing of a sixth or seventh—the conservative majority could easily last a generation.

“In light of this prospect, it is not too soon to start asking what a conservative Supreme Court would mean for the country. A conservative jurisprudence, aggressively applied, would reshape American law and politics. It would reinterpret fundamental issues of individual and privacy rights, health care, employment, national security, and the environment. These changes would in turn affect electoral politics. The range of conservative legislation that could survive judicial review would expand, while the range of progressive legislation that could do so would narrow.

“In retrospect, it is remarkable that a strong conservative majority on the Court has not emerged before now. Since 1980, Republicans have held the presidency for twenty-two years and Democrats for sixteen. Ronald Reagan, who campaigned on the platform of choosing conservative judges, appointed three justices—Antonin Scalia, Sandra Day O’Connor, and Kennedy—and elevated William Rehnquist to the chief justiceship. That should have established conservative control. Yet O’Connor turned out to be a centrist, controlling the Court for a quarter-century by casting the decisive fifth vote in controversial cases. When she retired in 2006, Kennedy assumed her position as the swing justice and unexpectedly emerged as a liberal hero, voting, for example, to extend constitutional rights to detainees in Guantánamo Bay and marriage rights to same-sex couples.1

“George H.W. Bush also had the chance to consolidate a conservative majority. He appointed Thomas to replace Thurgood Marshall but also replaced William Brennan with David Souter, who underwent a subtle yet significant evolution from Burkean conservative to Burkean liberal. Bill Clinton, George W. Bush, and Barack Obama each got two justices confirmed, which maintained the Court’s balance. That conservative control has been so long in coming reflects either miscalculation by Reagan and George H.W. Bush or (more likely) something less than full-throated judicial conservatism on their part.

“There is one glaring anomaly in the pattern of appointments. Obama should have been able to get Merrick Garland confirmed after Scalia died in February 2016—which would have provided some insulation against a conservative majority. The Senate’s decision to block the moderate Garland purely because Obama nominated him transformed both the composition of the Court and the norms of the confirmation process.

“A Senate controlled by Democrats would probably refuse to confirm any Trump Supreme Court nominee, no matter how much time remains in his presidency. If justices can only be confirmed when the president and the Senate majority come from the same party, we will witness a shrinking Supreme Court forced to operate with eight, seven, or even six justices. In this scenario, a president whose party controls the Senate would have the chance to fill all those vacancies with justices who share his or her ideology. The Court’s politics would no longer drift gradually but veer suddenly to the left or the right.

“One of the first things likely to happen if the Court’s majority turns conservative is that state legislatures in heavily Republican states will pass legislation restricting abortion rights. Already, Mississippi has passed a law barring abortions after fifteen weeks—long before viability. A federal court blocked the law, but its passage signals clearly that the Court will come under pressure to revisit Roe v. Wade.

“In the past, Chief Justice Roberts has shown a decided preference for changing constitutional law indirectly. Rather than overturning landmark liberal precedents outright, he prefers to minimize their importance by narrowing them and limiting their holdings to factual situations that no longer exist. He would surely prefer that Roe suffer death by a thousand cuts rather than see the Court accused of overturning it in a stroke and casting the country back to the days of coat-hanger and back-alley abortions.”