Justice Clarence Thomas is now the highest ranking member of the United States Supreme Court. He admits that he has never promoted the court.
“I am quite content to not get out on the street,” he stated last month. He recalled a conversation years back when Justice Antonin Scalia encouraged him “to fly the flag .”
It wasn’t a serious anecdote, but it was to open a rare public presentation made by Justice Thomas at the University of Notre Dame. He is just one of the four justices to have been flying the flag at high court recently. They all shared a common message: The high court is an impartial body serving the whole country and making decisions that are not influenced by political opinions.
Is it really law? What if personnel changes cause dramatic change in the law? This is the dilemma Americans face as they await the start of a crucial Supreme Court term.
“Knowing all the disagreements” on the court, said Justice Thomas, “it works.”
“It’s flawed, but I will defend it,” he added. We should not destroy our institutions, because they won’t give what we need The statements were made at an awkward moment for the court. As the justices prepare for a new term, which begins this week, public approval of the institution has dropped below 50% for the first time in decades, according to recent polls. After a period of relatively gradual, incremental changes in certain areas of law, but notable personnel changes that have consolidated a six-justice conservative majority, this term may see a shift in how cultural wars are waged after many decades of established rules.
The court will likely tackle important policy issues such as vaccine mandates or changes in state election laws. Dobbs Women’s Health v. Jackson is the case that, unlike other years, will determine the court’s terms and possibly its legacy.
“This is all about Dobbs,” stated Jeffrey Wall, an ex-acting solicitor general under Donald Trump. He spoke at a preview held last month by Georgetown Supreme Court Institute.
He also said that he didn’t believe there would be any public support for the court’s legitimacy unless there was a significant ruling regarding abortion .”
Derenda Hancock, who leads the Pink House Defenders, a group of volunteer abortion clinic escorts at the Jackson Women’s Health Organization, ushers a woman surrounded by anti-abortion protesters into the clinic in Jackson, Mississippi, May 22, 2021.
For the general public however, Aziz Huq from the University of Chicago Law School says that “the relationship between political parties and the court have been put into particular stark focus over the last few years.”
Since Republicans mobilized five year ago to stop Merrick Garland being nominated to the Supreme Court by President Barack Obama, a campaign which attracted millions in support from conservative interest groups and political parties, three new justices joined the court. All were nominated by Trump and confirmed by party-line vote.
” The court has been the center of partisan mobilisation in very explicit ways,” Professor Huq says. And “the change in the composition of the court has led to dramatic changes in jurisprudence.”
Dobbs could soon be the latest example.
A term that is defined in a single case.
For decades, the court was cautious when reviewing precedents in abortion. The Mississippi law at issue in Dobbs bans most abortions after 15 weeks, and the justices spent over seven months deciding whether to review it.
The law has been struck down by lower courts, citing Supreme Court precedent guaranteeing a woman’s right to abortion pre-viability – considered to be around 24 weeks – as established in Roe v. Wade in 1973.
The justices are focused on the weightiest question posed to them: whether all bans on pre-viability abortions are unconstitutional.
That question doesn’t specifically name the court’s landmark abortion precedents – Roe and 1992’s Planned Parenthood v. Casey – but in its brief Mississippi argues that both should be overturned, calling them “egregiously wrong.” (In its petition to the court a year earlier, it argued the case was an “opportunity to reconcile” those precedents with new understandings of viability.) Dobbs represents the greatest threat to the rights to abortion that the court has ever heard.
The “basic rule” from those decisions “was no pre-viability bans,” says Elizabeth Sepper, a professor at the University of Texas School of Law, “and Mississippi has passed a pre-viability ban.”
“If they uphold Mississippi’s law,” she adds, “they will have effectively reversed Roe v. Wade, even if they don’t say the words.”
Federal courts have enabled the gradual restriction of abortion access, permitting state regulations like mandatory waiting periods, parental notification requirements, and required counseling. More restrictions have been enacted in the first six months of this year than in any year since Roe, reported the Guttmacher Institute, a research organization that supports abortion access.
Neddie Winters, president of Mission Mississippi, a conservative racial reconciliation organization, delivers the opening prayer at an anti-abortion protest outside the Jackson Women’s Health Organization clinic in Jackson, Mississippi, Sept. 22, 2021. This clinic is the sole one in Mississippi and it’s at the center of an appeal before the Supreme Court that could uphold Roe v. Wade. Wade.
But the Supreme Court upheld the fundamental right to abortion. Whenever possible, a conservative justice joined his liberal counterparts. In a 5-3 ruling in 2016, Justice Anthony Kennedy joined the majority in striking down a Texas abortion regulation, with Chief Justice John Roberts dissenting. Then, last year, Chief Justice Roberts voted to strike down a Louisiana law almost identical to the Texas one – though he emphasized that, while he was now bound by the 2016 ruling, he still disagreed with it.
Experts agree that Chief Justice Roberts is likely to be present at the December court hearing in Dobbs.
If he is in the majority, he determines who makes the opinion. “And with that power, he can give narrower opinions,” Professor Huq says.
A large number of his coworkers have chosen to write narrower opinions over the years, court watchers note. This includes high-profile cases such as the Affordable Care Act and religious liberty.
“There is now a six-justice majority to overrule Roe,” adds Professor Huq, “but there’s differences over timing and pace and the way of achieving that.”
Gun rights, death penalty also on docket
Dobbs will not be the only significant case the justices hear this term.
The court has been avoiding hearing gun rights cases for over a decade. However, in November they will be hearing an appeal to New York’s restriction on concealed carry permits. This could lead to gun restrictions being lifted nationwide. Major cases will be heard in November and October on the death penalty, including an appeal by Dzhokhar Tsarnaev (bomber of Boston Marathon) and funding state religious schools.
Yet for this term, the court still only has 41 cases on its merits docket – the cases that are heard in full during the year – according to SCOTUSblog. While it has issued its smallest number of merits decisions since the Civil War in the past two terms – 56 and 53, respectively – there could still be some major petitions taken up for next year. The justices are currently considering whether they will hear challenges to Harvard University’s affirmative-action policy. )
A deeply divided Supreme Court permitted a Texas law banning most abortions to continue in force. This stripped most women of their right to have an abortion in America’s second largest state. Although the court denied an emergency appeal 5-4, it said that it wasn’t deciding whether or not the law was constitutional.
And all this doesn’t account for the actions that the court might take on its ever-busier “shadow docket”, which is a collection of petitions the court decides on an urgent basis. The justices have limited briefings and don’t allow oral arguments. The justices could be faced with high-profile cases like the mandated vaccinations or changes in state voting laws before next summer’s term.
Indeed. This month was marked by controversy and shadow docket activities. It preceded public assurances of the institution’s integrity by the justices. The court issued a series of brief orders this summer that stopped the federal government from evicting its citizens. It also required the Biden administration’s reinstatement of a Trump-era immigration policy. And it allowed the Texas abortion ban to continue in force pending appeals.
Judicial philosophies versus partisan politics
Justice Stephen Breyer, in interviews last month while promoting his new book, called the court’s Texas abortion decision “very, very, very wrong.” But the Clinton appointee – and oldest member of the high court – has also defended his colleagues as responsible jurists who decide cases based on judicial philosophies, not partisan affiliations.
“There are many jurisprudential differences” on the court, Justice Breyer told CNN last month. It’s not right to claim that it’s politically in the normal sense of politics . Justice Amy Coney Barrett made similar claims in Louisville, Kentucky, a week before. The high court isn’t “a bunch of partisan hacks,” she said at an event for Senate Minority Leader Mitch McConnell, the Louisville Courier Journal reported. “Judicial philosophy is not the same thing as political parties,” she said at an event for Senate Minority Leader Mitch McConnell, the Louisville Courier Journalreported.
“None these things happened,” Roman Martinez of Latham & Watkins, a former clerk to Chief Justice Roberts, and Brett Kavanaugh at the Georgetown Law event, said.
“If you talk to people on the right,” he added, “you will see a lot of frustration with the court, that they haven’t acted in a way the politics would suggest.”
Whether this term will yield similar surprises remains to be seen, but one member of the court’s liberal wing recently voiced her own frustrations at decisions the court reaches.
“There is going to be a lot of disappointment in the law, a huge amount,” said Justice Sonia Sotomayor last week, at an event hosted by the American Bar Association. Look at me. Take a look at me. .”
A frequent dissident to court conservative opinions, she said that she finds them helpful in explaining how she feels. But Justice Elena Kagan is another member of court’s liberal wings.
“Justice Kagan thinks that it is best to influence the majority by trying to reduce their holdings and to find a way to minimize the effect of any holding,” stated Justice Sotomayor.
This way, she said, “There will be a path later on to change the direction of an adverse ruling .”
In Dobbs’ case, it is unclear whether the court can weather the harm of changing abortion law in America, considering that most Americans support some abortion rights, and many generations of women have been expecting the constitutional right of bodily autonomy. The overarching issue for the entire term is how narrow rulings can be made after major constitutional issues have been raised – or avoided in the case with gun rights – for many decades.
” The court’s legitimacy depends on convincing the public that changing personnel does not mean drastic changes in law,” Farah Peterson (a University of Chicago Law School professor) said during September’s preview.