Judge Barret doesn’t threaten Roe v. Wade. She threatens the future of all reform.
Judge Amy Comey Barrett will almost assuredly be confirmed, replacing the Supreme Court’s most liberal justice Ruth Beta Ginsburg with someone who could well be one of its most conservative. For many, there are justifiable worries that Barrett will create a 5–4 conservative majority able to finally overcome those moments when Chief Justice John Roberts, himself appointed by George W. Bush, decides to side with the liberal wing. With this 5–4 majority, Republicans will be able to sue their way to gutting abortion rights, gay marriage, and other liberal social justice wins of the past half-century.
I’m not quite so convinced it’ll go that way; Barrett may well act as a small ‘c’ conservative, meaning she’s unwilling to embrace change, which would include rolling back major precedent like Roe v. Wade. Yet in many ways, that’s worse — and we’ve got the history to help prove it.
The Four Horsemen of the New Deal
FDR’s court-packing scheme is increasingly well known as liberals float adding new seats as a means to offset the Trumpian influence on today’s court; what’s less well known is why FDR thought to pack the court. During the New Deal, four Supreme Court justices, Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, emerged as arch-enemies of the New Deal during their terms.
The press dubbed them “The Four Horsemen” as they slashed through New Deal legislation designed to expand the government’s role in economic recovery. Notably, all four were appointed by pro-business Republican presidents (Butler and Sutherland by President Harding, McReynolds and Van Devanter by President Taft), and all four found the New Deal’s more expansive efforts against the Depression offensive to their Gilded Age worldviews.
The Four Horsemen did not use their court muscles to roll back hard-earned labor rights — things like the minimum wage and the right of the government to trust bust monopolies, labor-friendly government powers earned during the Progressive Era before World War I, stayed on the books. Rather, the four conspired to halt the New Deal in its tracks, and in turn, helped prevent America from overcoming the excesses of the Industrial Age.
Had the Four Horsemen not struck down legislation like the Agricultural Adjustment Act (a state-led initiative to bring up farm prices by buying agricultural surplus), the New Deal would have left a stronger interventionist legacy in the economy — and the United States might have developed into a more social democracy like Great Britain.
Four, even five, horsemen with Barrett on the bench
With Barrett on board, there’s at least another set of horsemen — and maybe even five. With Clarence Thomas, Brett Kavanaugh, and Neil Gorsuch — two of whom are Trump appointees — added to Barret, there's your four horsemen right there. And that’s excluding Samuel Alito, himself pretty conservative, and Chief Justice John Roberts, who sometimes does swing back towards that conservative base.
That’s enough to block a whole host of much-needed economic and political reforms, from Medicare for All to universal basic income-inspired economic plans to parts of the Green New Deal to an expanded Federal role for pre-K3 and pre-K4. It’s not so much the Trumpian Horsemen lead the charge to roll back old rights; doing so would easily invite a court-packing scheme, and unlike the 1930s it’s not guaranteed that a Biden court-packing plan would necessarily be unpopular, given how Trump has, at least to half the country, stolen two seats. Rather, it’s that they simply block all new reforms.
That is more dangerous. The United States is one of the most unequal countries amongst advanced democracies, and its national inequality picture is punctured by regional and local inequalities so dire that even the UN is alarmed. These deep inequalities, both economic and social, cannot be solved by the free market; 40 years of neoliberal rule is a testament to that. And to allow them to fester risks strengthening the unrest and division that’s already tearing at the fabric of the Republic. From the standpoint of security and prosperity, Federally-led, deep reform is needed.
Yet with Trumpian, small government, small ‘c’ conservatives adverse to change on the court, it’s not hard to see their forming a potent block to such much-needed change. And if they do, then perhaps we end up with a Supreme Court that plays the role the Court did in the 1850s — stoking division and undermining stability rather than uniting the country.