Next Justice Could Bring ‘A Sea Change In The Law,’ Says Legal Expert

Gun rights, Roe v. Wade and the Affordable Care Act likely affected, says law professor Joseph Blocher

President Trump’s pick to replace Supreme Court Justice Ruth Bader Ginsburg could have a far-reaching impact on issues ranging from gun rights to health care, said Duke University constitutional scholar Joseph Blocher.

“The next Supreme Court Justice could well cast the deciding vote on a wide range of fundamental constitutional questions, including the future of Roe v. Wade and the Affordable Care Act, not to mention the scope of voting rights and other important questions,” said Blocher, who specializes in federal and state constitutional law. (Watch an interview Blocher here.)

Trump is expected to announce his choice to replace Ginsburg on Saturday. The justice died last Friday at age 87.

Blocher says gun rights will likely take center stage if, as expected, Trump’s pick is confirmed by the Republican-led U.S. Senate.

“One issue that I think is particularly worth paying attention to is the future of the Second Amendment,” Blocher said. “The court has, for the last 10 years, avoided taking another major gun rights case. The justices don’t give reasons for why they don’t take cases, but one common understanding is that the justices are divided, with four justices having a broad view of gun rights, four justices tending to defer to the political branches when it comes to gun regulation, and the chief justice right in the middle – a 4-1-4 split.”

Blocher, who co-directs the Center for Firearms Law at Duke, added that the addition of one more conservative justice would change that to a 5-1-3 split, making it much more likely that the court will both take another gun rights case and rule against the constitutionality of the challenged law.

“But I think the most important question, as far as the Second Amendment is concerned, is how the court rules, the methodology that it employs,” he said. “There has been a push, especially in recent years, among conservative originalist judges to adopt what’s called the test of text, history and tradition, which would say that gun laws should be evaluated solely on the basis of text, history and tradition, and not, for example, by paying attention to their effectiveness in preventing gun-related harms like homicides, suicides, intimidation and terror.”

Added Blocher: “A fifth vote for the historical test could make all the difference and that, I think, would represent a sea change in the law.”