If it is the conservative legal establishment’s dream, it has come at a cost.
Polls show public approval of the court plummeted to historic lows — with a record number of respondents saying the court is too conservative — after the right wing of the court overturned Roe v. Wade’s guarantee of a constitutional right to abortion. President Biden is trying to put the court in the political spotlight, hoping the abortion decision’s shock waves rocked the foundation of this fall’s midterm elections, once thought to be a boon to Republicans.
And the justices themselves are openly debating what the court’s rightward turn has meant for its institutional integrity. Chief Justice John G. Roberts Jr. defends his conservative colleagues, with whom he does not always agree, saying unpopular decisions should not call the court’s legitimacy into question.
On the other side, liberal Justice Elena Kagan increasingly is sounding an alarm about the next precedents that could fall and the implications for public perception of the bench.
The court’s new docket offers that potential.
Justices have agreed to revisit whether universities can use race in a limited way when making admission decisions, a practice the court has endorsed since 1978. Two major cases involve voting rights. The court again will consider whether laws forbidding discrimination on the basis of sexual orientation must give way to business owners who do not want to provide wedding services to same-sex couples. And after limiting the Environmental Protection Agency’s authority in air pollution cases last term, the court will hear a challenge regarding the Clean Water Act.
Liberal justices sound worried.
“The court shouldn’t be wandering around just inserting itself into every hot-button issue in America, and especially it shouldn’t be doing that in a way that reflects one ideology or one set of political views over another,” Kagan said last week at Salve Regina, a Roman Catholic university in Rhode Island.
She said that disregarding stare decisis — the doctrine of abiding by past decisions in the absence of compelling evidence that change is required — undermines public confidence. “It just doesn’t look like law when some new judges appointed by a new president come in and start just tossing out the old stuff,” she said.
The new justice this year is a liberal — Ketanji Brown Jackson, the court’s first African American woman, was nominated by Biden to fill the seat of Stephen G. Breyer, who retired after 28 years. Jackson will not change the court’s ideological makeup.
Breyer declared his last term on the court “very frustrating” in a recent interview with CNN. Breyer was known during his tenure for pragmatism and trying to reach compromise, and he seemed to warn the conservative majority about making bold moves.
“You start writing too rigidly . . . the world will come around and bite you in the back,” he said.
No matter what the new term brings, it is unlikely to match the drama of its predecessor — a repudiation of decades of the court’s precedents on abortion rights. The leak of Justice Samuel A. Alito Jr.’s draft opinion in Dobbs v. Jackson Women’s Health Organization, upholding a restrictive Mississippi abortion law, created unprecedented tension at the court, which for a time was surrounded by a high black fence to ward off protesters.
The opinion, joined by Justice Clarence Thomas and the three justices chosen by President Donald Trump, achieved a decades-long conservative goal of overturning Roe.
“For many, that was a cause for great celebration,” said Irv Gornstein, the executive director of the Supreme Court Institute at the Georgetown Law Center. “For many others, it shattered their faith in the Supreme Court. Inside the court, Dobbs has provoked a deeply divisive debate on what it means for the court to act with legitimacy.”
Roberts voted to uphold the Mississippi law, but not to overturn Roe, calling that step too great a “jolt” to the legal system. But at a speech in Colorado last month, he defended justices who make controversial decisions.
“All of our opinions are open to criticism,” Roberts said in remarks to judges and lawyers. “In fact, our members do a great job of criticizing some opinions from time to time. But simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”
The public conversation among the justices since the Dobbs decision has been remarkable. Alito gave what liberals interpreted as a boastful address about the controversial decision this summer at a conference in Rome on religion and law.
“I had the honor this term of writing, I think, the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders who felt perfectly fine commenting on American law,” Alito said at the Notre Dame Religious Liberty Summit, sponsored by the Religious Liberty Initiative at the University of Notre Dame’s law school. He sarcastically took umbrage at criticism from Britain’s Prince Harry.
“What really wounded me — what really wounded me — was when the Duke of Sussex addressed the United Nations and seemed to compare the decision whose name may not be spoken with the Russian attack on Ukraine,” Alito said.
Biden, in turn, invoked Alito last week at a gathering of Democratic activists, where he said Republicans loyal to Trump “just cheered and embraced the first Supreme Court decision in our entire history — the first one in our entire history that just didn’t fail to preserve a constitutional freedom, it actually took away a fundamental right.”
He added: “Justice Alito said that women can decide the outcome of this election — paraphrasing some quote in the actual decision. Well, he ain’t seen nothing yet.”
As pointed as Kagan’s words have seemed in her speeches to college audiences and at a judicial conference, she noted that she, Breyer and Justice Sonia Sotomayor were even sharper in their dissents to the court’s rulings last term finding a right to carry a weapon outside the home for self-defense in a New York case, to relax the rules about public money going to religious schools and finding that Congress needed to be more explicit if the EPA was to exercise broad power in fighting climate change.
The dissent of the three in the abortion case stretched for 66 pages. Gornstein said at an event at William & Mary Law School that there could be long-term damage to relationships on the court should the 6-to-3 pattern be continually repeated in the coming term.
“That dissent said in no uncertain terms that that was a lawless decision, and that it was made only because five justices could make it so, and the only difference between prior law and this law is that there was a change in the composition of the court,” Gornstein said, adding, “I do think there is a potential for ill will carrying over into this term and into future terms.”
At the same event, New York University law professor Melissa Murray said there is a “whole curio cabinet of weirdness” about the court. She noted that the three Trump nominees — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — pledged varying degrees of allegiance to stare decisis at their confirmation hearings and then voted to overturn Roe at the first opportunity.
And there is the unprecedented example of Thomas’s wife, Virginia, playing an active role in encouraging legal challenges to Trump’s defeat in the 2020 election, while such issues are coming before the Supreme Court. On Thursday, she sat for an interview with the congressional committee investigating the riot at the U.S. Capitol on Jan. 6, 2021.
The liberal dissents are not for the other justices but “for the rest of the country, the audience outside of One First Street,” Murray said, referring to the Supreme Court building’s address in Northeast Washington. “I don’t know that they care about collegiality, because they’re trying to alert the rest of the country.”
Conservatives say it is unremarkable that new justices do not vote the same way as those they replace, and that those on the ideological left would expect the same if the circumstances were reversed.
“It can’t be illegitimate just because somebody came on who thinks differently,” said Erin Murphy, a Washington lawyer who was part of the legal team in the guns case. “What if they just are reaching the result because they think it is legally correct? Just because someone appointed them in hopes they would do so, it’s political not law?”
Murphy is a former clerk to Roberts, who acknowledged last month that it had been a difficult term. “I think just moving forward from things that were unfortunate is the best way to respond to it,” he said.
