Study: Without court packing, conservatives may control the Supreme Court until 2065

[TML]

In this recently published paper, the authors conducted simulations regarding packing the Supreme Court (or lack thereof), and the study concludes that if no court packing occurs and no justices flip politically, conservatives would probably dominate the Supreme Court for another four decades until around 2065 or so. On the other hand, the paper also concluded that if Democratic appointees had been successfully seated in the seats formerly occupied by Ginsburg and/or Scalia, this could have enabled liberals to take control of the court by around 2029 or so.

Does anyone else agree with the paper's conclusions?

[brucejoel99]

In this recently published paper, the authors conducted simulations regarding packing the Supreme Court (or lack thereof), and the study concludes that if no court packing occurs and no justices flip politically, conservatives would probably dominate the Supreme Court for another four decades until around 2065 or so. On the other hand, the paper also concluded that if Democratic appointees had been successfully seated in the seats formerly occupied by Ginsburg and/or Scalia, this could have enabled liberals to take control of the court by around 2029 or so.

Does anyone else agree with the paper's conclusions?

If a Democratic appointee had been successfully seated in the seat formerly occupied by Scalia, liberals would've taken control of the Court immediately, without having to wait 'til 2029.

[politicallefty]

I'd say 42 years is a long time, but it did work out pretty well the last time the right-wing stole the Court. A lot of those on the right like to trace the start of the court battles to the rejection of the Bork nomination. However, they conveniently like to leave out what happened in 1968. There was a concerted effort on the right against the Warren Court. It was Strom Thurmond that led a filibuster of the Fortas nomination to succeed Earl Warren as Chief Justice. So, instead of Abe Fortas and Homer Thornberry, we ended up with Warren Burger and Harry Blackmun. (Keep in mind that while Blackmun ended up being more liberal is his later years, he was pretty conservative in the 70s.) Nixon radically changed the direction of the Court.

It's quite extraordinary how different the Court would've looked if Humphrey had won. He probably would've had five openings during that term. He would've been able to nominate a new Chief Justice and nominate successors for Fortas, Black, and Harlan. It's also very likely Douglas would've retired earlier as he was trying to wait out Nixon/Ford. That would've left Stewart and White as the only Justices not on the left. You're looking at something well to the left of the Warren Court at that point.

If a Democratic appointee had been successfully seated in the seat formerly occupied by Scalia, liberals would've taken control of the Court immediately, without having to wait 'til 2029.

I share the viewpoint that that was the seat that was stolen (unlike some that say all three were stolen). It would've been a short-lived liberal majority though (assuming Trump still wins and Kennedy still retires). Ginsburg's death gets us back to a conservative majority, though a 5-4 one with Roberts in the middle.

[DaleCooper]

I don't know if that's true. We have two men in their 70s, plus John Roberts who is nearly 70. One of the Trump judges is an alcoholic so that will decrease his life expectancy.

But yeah, it is a shame. This is a reason why no one should honor or respect Ginsburg or any other liberal judge who hates America and refuses to retire at an appropriate time. If the left wants a statue to destroy, target the Thurgood Marshall idol Pelosi put up in Congress, lol.

[OSR stands with Israel]

I don't know if that's true. We have two men in their 70s, plus John Roberts who is nearly 70. One of the Trump judges is an alcoholic so that will decrease his life expectancy.

But yeah, it is a shame. This is a reason why no one should honor or respect Ginsburg or any other liberal judge who hates America and refuses to retire at an appropriate time. If the left wants a statue to destroy, target the Thurgood Marshall idol Pelosi put up in Congress, lol.

I don't know why you are mad at Marshall for retiring in 1991 given the prospects for 1992 looked extremely bleak for the Democrats then. Literally not a single major democrat at the time decided to run for President as they thought 1992 was unwinnable and many Democrats were fearing huge Republican gains in the House and Senate as well.

So Marshall just calculated it would be better to retire in 1991 given Democrats had a comfortable senate majority and hope any strongly conservative nominee would be rejected like Bork was and forcing Bush to nominate someone like Kennedy instead.

[DaleCooper]

I don't know if that's true. We have two men in their 70s, plus John Roberts who is nearly 70. One of the Trump judges is an alcoholic so that will decrease his life expectancy.

But yeah, it is a shame. This is a reason why no one should honor or respect Ginsburg or any other liberal judge who hates America and refuses to retire at an appropriate time. If the left wants a statue to destroy, target the Thurgood Marshall idol Pelosi put up in Congress, lol.

I don't know why you are mad at Marshall for retiring in 1991 given the prospects for 1992 looked extremely bleak for the Democrats then. Literally not a single major democrat at the time decided to run for President as they thought 1992 was unwinnable and many Democrats were fearing huge Republican gains in the House and Senate as well.

So Marshall just calculated it would be better to retire in 1991 given Democrats had a comfortable senate majority and hope any strongly conservative nominee would be rejected like Bork was and forcing Bush to nominate someone like Kennedy instead.

He should've retired under Carter instead of hoping that he would live through another Republican administration. After choosing to behave selfishly, he retired under Bush instead of laying in a hospice bed and hoping that he would remain comatose but alive until a new president got in. And if Bush won reelection, then whatever at least he tried.

As for the subject of this thread, I think that if Biden gets the chance to replace a conservative justice then the court packing talk will go away for a while. If two conservatives die under Biden then we'll start seeing all the conservative hacks demanding court packing, lol. I do think that court packing is kind of inevitable if that doesn't happen, though. Now that conservatives are embracing completely fake legal theories like that major questions crap, we're going to see more and more blatant political activism from SCOTUS and it won't be long before court packing is part of the Democratic platform. As it is now, the Supreme Court is already more unpopular than it has been certainly in any of our lifetimes. There's no way the left waits until the 2060s to put a stop to this.

[Vosem]

In this recently published paper, the authors conducted simulations regarding packing the Supreme Court (or lack thereof), and the study concludes that if no court packing occurs and no justices flip politically, conservatives would probably dominate the Supreme Court for another four decades until around 2065 or so. On the other hand, the paper also concluded that if Democratic appointees had been successfully seated in the seats formerly occupied by Ginsburg and/or Scalia, this could have enabled liberals to take control of the court by around 2029 or so.

Does anyone else agree with the paper's conclusions?

This actually seems rather optimistic for progressives, right? The last time before Barrett replacing Ginsburg (2020) that a seat switched sides was in 1991; it wasn't really common before that either (though it gets harder to say when because of less strongly defined ideological lines). Assuming 29 years between opportunities to flip seats, progressives shouldn't take the Court back until 2078.

But that's still a favorable set of assumptions for progressives! It assumes that they will control the Senate for most of the time, whereas in practice there are more right-leaning than left-leaning states, and so long as basically modern trends remain in place (of only growing areas trending Democratic), most states will continue to trend Republican, with Democratic strength becoming confined to a shrinking set of extremely economically prosperous metropolitan areas with a culture increasingly different from most of the country's. Under those conditions the GOP's advantage in the Senate can be expected to grow:

https://twitter.com/davidshor/status/1653529304687362051

Young Democrats from rural areas keep moving to big cities! Given that that's true, the GOP's Senate advantage will probably grow over time (...at least until some large realignment happens), and the court system will get more conservative than it is now. You'd predict a "progressive takeover" date much later than 2078 in that case.

[MarkD]

If we insisted that presidents would appoint the most objective interpreters of law that can be found anywhere in the country, this wouldn't be a problem. And yes, human beings can be objective. Human beings can resist temptation. Judges will often be faced with the temptation to utilize their own values to resolve disputes, but they can resist that temptation. Appointing Supreme Court Justices with a presumption that the appointees will be ideologically predictable hacks is a course of action that leads to corrupt decisions and misinterpretations of the Constitution.

[DaleCooper]

If we insisted that presidents would appoint the most objective interpreters of law that can be found anywhere in the country, this wouldn't be a problem. And yes, human beings can be objective. Human beings can resist temptation. Judges will often be faced with the temptation to utilize their own values to resolve disputes, but they can resist that temptation. Appointing Supreme Court Justices with a presumption that the appointees will be ideologically predictable hacks is a course of action that leads to corrupt decisions and misinterpretations of the Constitution.

In my ideal world, all 9 of the sitting justices would be removed and their replacements (and all uture justices) would require a two-thirds majority to confirm.

[politicallefty]

If we insisted that presidents would appoint the most objective interpreters of law that can be found anywhere in the country, this wouldn't be a problem. And yes, human beings can be objective. Human beings can resist temptation. Judges will often be faced with the temptation to utilize their own values to resolve disputes, but they can resist that temptation. Appointing Supreme Court Justices with a presumption that the appointees will be ideologically predictable hacks is a course of action that leads to corrupt decisions and misinterpretations of the Constitution.

There are those that argue for expanding the Court, term limits, and so on. None of the proposals get to the root of the problem. I think the entire nomination process needs to amended. It may have worked mostly fine for most of the country's history, but it doesn't work anymore. I think we need to have some form of judicial council that submits nominees to the President that can be then be voted on by the Senate. Maybe like a 9-seat council that has three D appointees and 3 R appointees. Those 6 would all need to decide on the remaining 3 appointees. For a Supreme Court vacancy, it would require two of each group to submit a nominee to the President. The council would submit 3 nominees to the President. The President would then submit one of those nominees to the Senate, which would require a 2/3 vote of the Senate. I'm not sure what should happen if none of them reach that number, but I'm sure there's a good option available.

[freepcrusher]

does anyone see the left being all that patient? If there is a serious worry of 8/10/19 events or whatever euphemistic word you want to use happening - wouldn't term limits be the "safe" option?

[Ferguson97]

[SnowLabrador]

Serious question: For those who think this Supreme Court won't overturn Obergefell and Loving, why won't they?

[Jim Crow]

Serious question: For those who think this Supreme Court won't overturn Obergefell and Loving, why won't they?

Obergefell has been codified.  They can't overturn it.

[World politics is up Schmitt creek]

Serious question: For those who think this Supreme Court won't overturn Obergefell and Loving, why won't they?

Obergefell has been codified.  They can't overturn it.

That and it's hard to see how test cases to overturn those precedents could plausibly arise.

[politicallefty]

Serious question: For those who think this Supreme Court won't overturn Obergefell and Loving, why won't they?

Obergefell has been codified.  They can't overturn it.

That and it's hard to see how test cases to overturn those precedents could plausibly arise.

The Respect for Marriage Act doesn't force states to perform marriages though. (If Congress tried that, it would've been before SCOTUS on 10th Amendment grounds.)

The thing is that I could see some right-wing judge (let's say from the Northern District of Texas) try to outright defy recent Supreme Court precedent. Some on the 5th Circuit would be more than happy to force the issue back to the Supreme Court and keep in mind that it only takes four votes to grant cert. I think Roberts would uphold Obergefell on stare decisis grounds. I certainly wouldn't trust any of the other five conservatives.

It's also worth remembering that only one state (Nevada) has actually repealed its constitutional ban and enshrined same-sex marriage in its state constitution. For some reason, California hasn't even repealed Prop 8 yet. Even if Obergefell isn't under threat, it would be nice for states to remove such language from their state constitutions (at least from those that can skip the petition drives and put it straight on the ballot through a legislative vote).

[SnowLabrador]

Serious question: For those who think this Supreme Court won't overturn Obergefell and Loving, why won't they?

Obergefell has been codified.  They can't overturn it.

That and it's hard to see how test cases to overturn those precedents could plausibly arise.

The Respect for Marriage Act doesn't force states to perform marriages though. (If Congress tried that, it would've been before SCOTUS on 10th Amendment grounds.)

The thing is that I could see some right-wing judge (let's say from the Northern District of Texas) try to outright defy recent Supreme Court precedent. Some on the 5th Circuit would be more than happy to force the issue back to the Supreme Court and keep in mind that it only takes four votes to grant cert. I think Roberts would uphold Obergefell on stare decisis grounds. I certainly wouldn't trust any of the other five conservatives.

It's also worth remembering that only one state (Nevada) has actually repealed its constitutional ban and enshrined same-sex marriage in its state constitution. For some reason, California hasn't even repealed Prop 8 yet. Even if Obergefell isn't under threat, it would be nice for states to remove such language from their state constitutions (at least from those that can skip the petition drives and put it straight on the ballot through a legislative vote).

Something similar is happening in Tennessee. This is how they'll repeal Obergefell.

[Ferguson97]

Serious question: For those who think this Supreme Court won't overturn Obergefell and Loving, why won't they?

Obergefell has been codified.  They can't overturn it.

That and it's hard to see how test cases to overturn those precedents could plausibly arise.

I don't understand how "codification" is some One Weird Trick to circumvent SCOTUS.

[Make America Grumpy Again]

Serious question: For those who think this Supreme Court won't overturn Obergefell and Loving, why won't they?

If they tried to overturn Obergefell which I don't believe they have the votes to do, Congress has the votes to codify it, effectively nullifying the ruling in the long term. And there isn't a notable elected official who wants to/has advocated for the overturning of Loving, that's just fearmongering at this point.

[SWE]

Serious question: For those who think this Supreme Court won't overturn Obergefell and Loving, why won't they?

Obergefell has been codified.  They can't overturn it.

That and it's hard to see how test cases to overturn those precedents could plausibly arise.

I don't understand how "codification" is some One Weird Trick to circumvent SCOTUS.

Because "the Constitution does not enshrine this right" and "the Constitution forbids Congress from enshrining this right" are two radically different positions for SCOTUS to take and the former does not imply the latter. Kavanaugh's Dobbs concurrence reads to me like he'd uphold a codification of Roe, so with the Court's current makeup, codification of otherwise precarious rights seems viable

[Vosem]

Serious question: For those who think this Supreme Court won't overturn Obergefell and Loving, why won't they?

Obergefell has been codified.  They can't overturn it.

That and it's hard to see how test cases to overturn those precedents could plausibly arise.

I don't understand how "codification" is some One Weird Trick to circumvent SCOTUS.

Because "the Constitution does not enshrine this right" and "the Constitution forbids Congress from enshrining this right" are two radically different positions for SCOTUS to take and the former does not imply the latter. Kavanaugh's Dobbs concurrence reads to me like he'd uphold a codification of Roe, so with the Court's current makeup, codification of otherwise precarious rights seems viable

I could see Roberts and Kavanaugh deciding to be pragmatists (but I could also see them not), but it's legitimately hard for me to imagine a congressional codification of Roe surviving a challenge under the logic of Lopez or Morrison. In particular, this is an area of the law where Roberts is not particularly moderate.

Marriage is different purely because some degree of federal regulation of marriage is quite old (going back to 1860s-era anti-Mormon legislation); because marriage is one of the archetypal concerns of the Full Faith and Credit Clause; and because marriage is one of the oldest rights mentioned in dicta under substantive due process. (The really interesting marriage case in this series is neither Obergefell nor Loving, but Redhail**, a 1978 case in which the Court recognized a right to heterosexual marriage...8-1, but with Rehnquist dissenting in a way that echoes many future conservative legal arguments. I could imagine a narrow case striking down Obergefell*, but in some ways it would be easier to write a broad opinion overturning Redhail and saying there is no right to any kind of marriage.)

*If anything Alito's opinion in Dobbs seems to prefigure this, since he discusses rights which are 'deeply rooted' in the nation's history: this would apply to heterosexual marriage, but probably not to gay marriage.

**At issue here was a Wisconsin law that did not permit marriage if you had particular kinds of debts to the state, and in general prohibiting marriage as a criminal penalty.

[brucejoel99]

Serious question: For those who think this Supreme Court won't overturn Obergefell and Loving, why won't they?

Obergefell has been codified.  They can't overturn it.

That and it's hard to see how test cases to overturn those precedents could plausibly arise.

I don't understand how "codification" is some One Weird Trick to circumvent SCOTUS.

Because "the Constitution does not enshrine this right" and "the Constitution forbids Congress from enshrining this right" are two radically different positions for SCOTUS to take and the former does not imply the latter. Kavanaugh's Dobbs concurrence reads to me like he'd uphold a codification of Roe, so with the Court's current makeup, codification of otherwise precarious rights seems viable

I could see Roberts and Kavanaugh deciding to be pragmatists (but I could also see them not), but it's legitimately hard for me to imagine a congressional codification of Roe surviving a challenge under the logic of Lopez or Morrison. In particular, this is an area of the law where Roberts is not particularly moderate.

Legitimately, how? Rehnquist's Lopez test - controlling in Morrison - upheld Congress' power to regulate intrastate economic activity that has a substantial effect on interstate commerce, so the provision of abortion care would presumably just be considered intrastate commerce that substantially affects interstate commerce, given that as much has already been implied by the legitimacy of the congressional power to regulate the provision of such a medical procedure on that basis being taken for granted by the Court & all party-advocates in Gonzales v. Carhart; indeed, Thomas (joined by Scalia) contended the CC in his Carhart concurrence, concluding that everybody but his (&, by extension, Scalia's) taking-for-granted in the case of the PBAB as a constitutional exercise of Congress' legislative power under the CC to regulate the medical profession (as a substantial affecter of IC under Lopez) was an accurate reflection of current CC jurisprudence, which he just didn't fully agree with (to the extent that it doesn't go far enough to protect intrastate activities) but couldn't really do anything about if nobody was bothering to challenge it, & Roberts didn't join him, so even assuming Alito (unlike then, but definitely would now), Gorsuch & ACB side with Thomas now, it'd come down to what Kav has to say, & based on his Dobbs concurrence, he sees Congress - not just the states - as a part of "the people and their elected representatives".

IMO, there are 5 votes to uphold a national abortion law - be it a ban or, more likely, a WHPA-like bill codifying the viability line into federal law - as a legal CC application, at least to the extent that there don't appear to be 5 votes rn actually willing to do away with Lopez's substantial effect test, under which the intrastate provision of abortion care substantially affects IC under current jurisprudence just as all healthcare procedures & medical profession aspects that Congress currently regulates do. If/when the next Democratic trifecta were to successfully manage to enact the WHPA (or even if a Republican trifecta were to successfully manage to enact a nationwide ban, for that matter), I'd question if the Court even ultimately grants cert to QPs that presumably end up having to be something like "(1): should the Court overrule Lopez; & (2): if no to (1), does the intrastate provision of abortion drugs/services produce what constitutes a requisite substantial effect on interstate commerce under Lopez that enables Congress to constitutionally regulate the same under the ICC?"

[Vosem]

Serious question: For those who think this Supreme Court won't overturn Obergefell and Loving, why won't they?

Obergefell has been codified.  They can't overturn it.

That and it's hard to see how test cases to overturn those precedents could plausibly arise.

I don't understand how "codification" is some One Weird Trick to circumvent SCOTUS.

Because "the Constitution does not enshrine this right" and "the Constitution forbids Congress from enshrining this right" are two radically different positions for SCOTUS to take and the former does not imply the latter. Kavanaugh's Dobbs concurrence reads to me like he'd uphold a codification of Roe, so with the Court's current makeup, codification of otherwise precarious rights seems viable

I could see Roberts and Kavanaugh deciding to be pragmatists (but I could also see them not), but it's legitimately hard for me to imagine a congressional codification of Roe surviving a challenge under the logic of Lopez or Morrison. In particular, this is an area of the law where Roberts is not particularly moderate.

Legitimately, how? Rehnquist's Lopez test - controlling in Morrison - upheld Congress' power to regulate intrastate economic activity that has a substantial effect on interstate commerce, so the provision of abortion care would presumably just be considered intrastate commerce that substantially affects interstate commerce, given that as much has already been implied by the legitimacy of the congressional power to regulate the provision of such a medical procedure on that basis being taken for granted by the Court & all party-advocates in Gonzales v. Carhart; indeed, Thomas (joined by Scalia) contended the CC in his Carhart concurrence, concluding that everybody but his (&, by extension, Scalia's) taking-for-granted in the case of the PBAB as a constitutional exercise of Congress' legislative power under the CC to regulate the medical profession (as a substantial affecter of IC under Lopez) was an accurate reflection of current CC jurisprudence, which he just didn't fully agree with (to the extent that it doesn't go far enough to protect intrastate activities) but couldn't really do anything about if nobody was bothering to challenge it, & Roberts didn't join him, so even assuming Alito (unlike then, but definitely would now), Gorsuch & ACB side with Thomas now, it'd come down to what Kav has to say, & based on his Dobbs concurrence, he sees Congress - not just the states - as a part of "the people and their elected representatives".

I think Thomas's concurrence in Carhart just notes that the issue of whether the abortion ban was constitutional under the Commerce Clause was not addressed because it wasn't brought up by any of the parties; in that particular set of facts it would've satisfied nobody to do so. I don't think there is necessarily a deeper meaning in Alito and Roberts not joining Thomas's concurrence, especially given that they needed Kennedy on board in order to have the case go their way at all. This isn't necessarily a topic where I'm speaking with high confidence, but abortion strikes me as less obviously related to interstate commerce than topics where I think there's been federal legislation, like licensing (which might permit you to practice anywhere) or the sale of drugs or medical devices (...or insurance, or personal information), which usually cross state lines. How many federal laws are there about how to conduct medical procedures, rather than licenses/drugs/devices? I suspect not many (and a quick Google search didn't turn up any), though I think to really give this a full answer I would have to put in more research than this top-of-my-head answer.

IMO, there are 5 votes to uphold a national abortion law - be it a ban or, more likely, a WHPA-like bill codifying the viability line into federal law - as a legal CC application, at least to the extent that there don't appear to be 5 votes rn actually willing to do away with Lopez's substantial effect test, under which the intrastate provision of abortion care substantially affects IC under current jurisprudence just as all healthcare procedures & medical profession aspects that Congress currently regulates do.

I think it is plausible that you're correct, but Roberts is actually someone who has been fairly conservative on Commerce-Clause cases and I wouldn't count him as a certain vote here by any means. I think Kavanaugh and the four liberals are pretty likely, though. As for the Lopez test, it's hard for me to imagine that the current majority wouldn't overturn Raich (and by extension, Wickard) if the basic facts from that case were reheard; after all at that time even O'Connor was part of the dissent. My guess is that the votes are there now to tighten the test from Lopez in practice, although I'm not sure that this would be done explicitly (I don't know that there are 5 votes to literally write out "we overturn Wickard" in a majority opinion).

If/when the next Democratic trifecta were to successfully manage to enact the WHPA (or even if a Republican trifecta were to successfully manage to enact a nationwide ban, for that matter), I'd question if the Court even ultimately grants cert to QPs that presumably end up having to be something like "(1): should the Court overrule Lopez; & (2): if no to (1), does the intrastate provision of abortion drugs/services produce what constitutes a requisite substantial effect on interstate commerce under Lopez that enables Congress to constitutionally regulate the same under the ICC?"

I think the Court is much likelier to find providing drugs to be covered by Lopez than providing services; this is also an odd conversation because it's really hard to say how such a case might go without knowing the exact text of a codification or ban, and what arguments its challengers might use. In Carhart both sides felt it would be disadvantageous to bring up Commerce-Clause-related arguments; we might see something similar to that. But I don't think "regulation of abortion procedures is permitted under the Commerce Clause" would be anything like a slam-dunk on the current Court.

[Skill and Chance]

Serious question: For those who think this Supreme Court won't overturn Obergefell and Loving, why won't they?

Obergefell has been codified.  They can't overturn it.

That and it's hard to see how test cases to overturn those precedents could plausibly arise.

I don't understand how "codification" is some One Weird Trick to circumvent SCOTUS.

Because "the Constitution does not enshrine this right" and "the Constitution forbids Congress from enshrining this right" are two radically different positions for SCOTUS to take and the former does not imply the latter. Kavanaugh's Dobbs concurrence reads to me like he'd uphold a codification of Roe, so with the Court's current makeup, codification of otherwise precarious rights seems viable

I could see Roberts and Kavanaugh deciding to be pragmatists (but I could also see them not), but it's legitimately hard for me to imagine a congressional codification of Roe surviving a challenge under the logic of Lopez or Morrison. In particular, this is an area of the law where Roberts is not particularly moderate.

Legitimately, how? Rehnquist's Lopez test - controlling in Morrison - upheld Congress' power to regulate intrastate economic activity that has a substantial effect on interstate commerce, so the provision of abortion care would presumably just be considered intrastate commerce that substantially affects interstate commerce, given that as much has already been implied by the legitimacy of the congressional power to regulate the provision of such a medical procedure on that basis being taken for granted by the Court & all party-advocates in Gonzales v. Carhart; indeed, Thomas (joined by Scalia) contended the CC in his Carhart concurrence, concluding that everybody but his (&, by extension, Scalia's) taking-for-granted in the case of the PBAB as a constitutional exercise of Congress' legislative power under the CC to regulate the medical profession (as a substantial affecter of IC under Lopez) was an accurate reflection of current CC jurisprudence, which he just didn't fully agree with (to the extent that it doesn't go far enough to protect intrastate activities) but couldn't really do anything about if nobody was bothering to challenge it, & Roberts didn't join him, so even assuming Alito (unlike then, but definitely would now), Gorsuch & ACB side with Thomas now, it'd come down to what Kav has to say, & based on his Dobbs concurrence, he sees Congress - not just the states - as a part of "the people and their elected representatives".

I think Thomas's concurrence in Carhart just notes that the issue of whether the abortion ban was constitutional under the Commerce Clause was not addressed because it wasn't brought up by any of the parties; in that particular set of facts it would've satisfied nobody to do so. I don't think there is necessarily a deeper meaning in Alito and Roberts not joining Thomas's concurrence, especially given that they needed Kennedy on board in order to have the case go their way at all. This isn't necessarily a topic where I'm speaking with high confidence, but abortion strikes me as less obviously related to interstate commerce than topics where I think there's been federal legislation, like licensing (which might permit you to practice anywhere) or the sale of drugs or medical devices (...or insurance, or personal information), which usually cross state lines. How many federal laws are there about how to conduct medical procedures, rather than licenses/drugs/devices? I suspect not many (and a quick Google search didn't turn up any), though I think to really give this a full answer I would have to put in more research than this top-of-my-head answer.

IMO, there are 5 votes to uphold a national abortion law - be it a ban or, more likely, a WHPA-like bill codifying the viability line into federal law - as a legal CC application, at least to the extent that there don't appear to be 5 votes rn actually willing to do away with Lopez's substantial effect test, under which the intrastate provision of abortion care substantially affects IC under current jurisprudence just as all healthcare procedures & medical profession aspects that Congress currently regulates do.

I think it is plausible that you're correct, but Roberts is actually someone who has been fairly conservative on Commerce-Clause cases and I wouldn't count him as a certain vote here by any means. I think Kavanaugh and the four liberals are pretty likely, though. As for the Lopez test, it's hard for me to imagine that the current majority wouldn't overturn Raich (and by extension, Wickard) if the basic facts from that case were reheard; after all at that time even O'Connor was part of the dissent. My guess is that the votes are there now to tighten the test from Lopez in practice, although I'm not sure that this would be done explicitly (I don't know that there are 5 votes to literally write out "we overturn Wickard" in a majority opinion).

If/when the next Democratic trifecta were to successfully manage to enact the WHPA (or even if a Republican trifecta were to successfully manage to enact a nationwide ban, for that matter), I'd question if the Court even ultimately grants cert to QPs that presumably end up having to be something like "(1): should the Court overrule Lopez; & (2): if no to (1), does the intrastate provision of abortion drugs/services produce what constitutes a requisite substantial effect on interstate commerce under Lopez that enables Congress to constitutionally regulate the same under the ICC?"

I think the Court is much likelier to find providing drugs to be covered by Lopez than providing services; this is also an odd conversation because it's really hard to say how such a case might go without knowing the exact text of a codification or ban, and what arguments its challengers might use. In Carhart both sides felt it would be disadvantageous to bring up Commerce-Clause-related arguments; we might see something similar to that. But I don't think "regulation of abortion procedures is permitted under the Commerce Clause" would be anything like a slam-dunk on the current Court.

The more interesting scenario would be if a federal ban (I'm including a strict limit like 6 or 8 weeks in my idea of "ban" here) becomes law and gets challenged as exceeding the scope of the Commerce Clause.  At a minimum, Thomas and Gorsuch are basically locks to rule that it isn't interstate commerce in cases where the clinic or pill prescribing doctor is in the same state as the patient, which means the 3 liberals could decide the case.  Do they sign onto a decision (the federal government has no authority to regulate abortion) that would make state level abortion bans functionally eternal in order to block the federal restrictions?  Or do they uphold the federal restrictions and hope a future Congress would be able to codify Roe or pushing the limit out to 15 weeks? 

*I'm aware of an additional argument that would likely be brought to defend a federal ban: that unborn babies are persons under the 14th Amendment and Congress is exercising its power to enforce their right not to be deprived of life without due process of law.  I think that's a stretch and all signs are SCOTUS isn't ready to go there.

[Person Man]

Serious question: For those who think this Supreme Court won't overturn Obergefell and Loving, why won't they?

Obergefell has been codified.  They can't overturn it.

That and it's hard to see how test cases to overturn those precedents could plausibly arise.

I don't understand how "codification" is some One Weird Trick to circumvent SCOTUS.

Because "the Constitution does not enshrine this right" and "the Constitution forbids Congress from enshrining this right" are two radically different positions for SCOTUS to take and the former does not imply the latter. Kavanaugh's Dobbs concurrence reads to me like he'd uphold a codification of Roe, so with the Court's current makeup, codification of otherwise precarious rights seems viable

I could see Roberts and Kavanaugh deciding to be pragmatists (but I could also see them not), but it's legitimately hard for me to imagine a congressional codification of Roe surviving a challenge under the logic of Lopez or Morrison. In particular, this is an area of the law where Roberts is not particularly moderate.

Legitimately, how? Rehnquist's Lopez test - controlling in Morrison - upheld Congress' power to regulate intrastate economic activity that has a substantial effect on interstate commerce, so the provision of abortion care would presumably just be considered intrastate commerce that substantially affects interstate commerce, given that as much has already been implied by the legitimacy of the congressional power to regulate the provision of such a medical procedure on that basis being taken for granted by the Court & all party-advocates in Gonzales v. Carhart; indeed, Thomas (joined by Scalia) contended the CC in his Carhart concurrence, concluding that everybody but his (&, by extension, Scalia's) taking-for-granted in the case of the PBAB as a constitutional exercise of Congress' legislative power under the CC to regulate the medical profession (as a substantial affecter of IC under Lopez) was an accurate reflection of current CC jurisprudence, which he just didn't fully agree with (to the extent that it doesn't go far enough to protect intrastate activities) but couldn't really do anything about if nobody was bothering to challenge it, & Roberts didn't join him, so even assuming Alito (unlike then, but definitely would now), Gorsuch & ACB side with Thomas now, it'd come down to what Kav has to say, & based on his Dobbs concurrence, he sees Congress - not just the states - as a part of "the people and their elected representatives".

I think Thomas's concurrence in Carhart just notes that the issue of whether the abortion ban was constitutional under the Commerce Clause was not addressed because it wasn't brought up by any of the parties; in that particular set of facts it would've satisfied nobody to do so. I don't think there is necessarily a deeper meaning in Alito and Roberts not joining Thomas's concurrence, especially given that they needed Kennedy on board in order to have the case go their way at all. This isn't necessarily a topic where I'm speaking with high confidence, but abortion strikes me as less obviously related to interstate commerce than topics where I think there's been federal legislation, like licensing (which might permit you to practice anywhere) or the sale of drugs or medical devices (...or insurance, or personal information), which usually cross state lines. How many federal laws are there about how to conduct medical procedures, rather than licenses/drugs/devices? I suspect not many (and a quick Google search didn't turn up any), though I think to really give this a full answer I would have to put in more research than this top-of-my-head answer.

IMO, there are 5 votes to uphold a national abortion law - be it a ban or, more likely, a WHPA-like bill codifying the viability line into federal law - as a legal CC application, at least to the extent that there don't appear to be 5 votes rn actually willing to do away with Lopez's substantial effect test, under which the intrastate provision of abortion care substantially affects IC under current jurisprudence just as all healthcare procedures & medical profession aspects that Congress currently regulates do.

I think it is plausible that you're correct, but Roberts is actually someone who has been fairly conservative on Commerce-Clause cases and I wouldn't count him as a certain vote here by any means. I think Kavanaugh and the four liberals are pretty likely, though. As for the Lopez test, it's hard for me to imagine that the current majority wouldn't overturn Raich (and by extension, Wickard) if the basic facts from that case were reheard; after all at that time even O'Connor was part of the dissent. My guess is that the votes are there now to tighten the test from Lopez in practice, although I'm not sure that this would be done explicitly (I don't know that there are 5 votes to literally write out "we overturn Wickard" in a majority opinion).

If/when the next Democratic trifecta were to successfully manage to enact the WHPA (or even if a Republican trifecta were to successfully manage to enact a nationwide ban, for that matter), I'd question if the Court even ultimately grants cert to QPs that presumably end up having to be something like "(1): should the Court overrule Lopez; & (2): if no to (1), does the intrastate provision of abortion drugs/services produce what constitutes a requisite substantial effect on interstate commerce under Lopez that enables Congress to constitutionally regulate the same under the ICC?"

I think the Court is much likelier to find providing drugs to be covered by Lopez than providing services; this is also an odd conversation because it's really hard to say how such a case might go without knowing the exact text of a codification or ban, and what arguments its challengers might use. In Carhart both sides felt it would be disadvantageous to bring up Commerce-Clause-related arguments; we might see something similar to that. But I don't think "regulation of abortion procedures is permitted under the Commerce Clause" would be anything like a slam-dunk on the current Court.

The more interesting scenario would be if a federal ban (I'm including a strict limit like 6 or 8 weeks in my idea of "ban" here) becomes law and gets challenged as exceeding the scope of the Commerce Clause.  At a minimum, Thomas and Gorsuch are basically locks to rule that it isn't interstate commerce in cases where the clinic or pill prescribing doctor is in the same state as the patient, which means the 3 liberals could decide the case.  Do they sign onto a decision (the federal government has no authority to regulate abortion) that would make state level abortion bans functionally eternal in order to block the federal restrictions?  Or do they uphold the federal restrictions and hope a future Congress would be able to codify Roe or pushing the limit out to 15 weeks? 

*I'm aware of an additional argument that would likely be brought to defend a federal ban: that unborn babies are persons under the 14th Amendment and Congress is exercising its power to enforce their right not to be deprived of life without due process of law.  I think that's a stretch and all signs are SCOTUS isn't ready to go there.

And probably won't unless the court is somehow pushed further to the right. Right?

I think that this paper could be right. It took about 40 years to get to this point, if you average the year this project started to either 1968 or 1986. And it might not be over? It appears that overturning Roe was the culmination of this big project and only time will tell if this has the same effect that Roe did (started the Federalist project). That will be more indicative.

Other things to consider is whether the three mainstream conservatives might eventually change their minds just enough to dampen change for judicial reform, whether the conservative court can piggy back on a Republican agenda that turns out to be popular as the culture, economy, and world stage evolve, or if there is some black swan that generates an opportunity for liberals.