Supreme Court term begins amid questions about its legitimacy

The Supreme Court begins its new term on Monday, but the nation, its leaders and the justices themselves do not appear to be past the last one.

The court’s 6-3 conservative majority quickly shifted its case law sharply to the right, and there’s no reason to believe the direction or pace is likely to change. This The court’s version appears intent on allowing more restrictions on abortion, fewer on guns, shifting a previously strict line separating church and state, and curbing government agencies.

If this is the dream of the conservative legal establishment, it comes at a cost.

Polls show public approval of the tribunal has dropped to historic lows – with record numbers saying the tribunal is too conservative – after the tribunal’s right-wing overthrow Roe vs. Wadeguarantee of a constitutional right to abortion. President Biden is trying to put the court in the political spotlight, hoping the shockwaves from the abortion ruling shook the foundations this fall midterm elections, once seen as a boon to Republicans.

And the justices themselves are openly debating what the court’s rightward shift has meant for its institutional integrity. Chief Justice John G. Roberts Jr. defends his conservative colleagues, with whom he doesn’t always agree, saying unpopular rulings should not undermine the court’s legitimacy.

On the other side, liberal Justice Elena Kagan is increasingly sounding the alarm about the next precedents that could fall and the implications for public perception of the bench.

The new role of the tribunal offers this potential.

The justices agreed to review whether universities can use race in a limited way when making admissions decisions, a practice the court has endorsed since 1978. Two major cases involve voting rights. The court will again consider whether laws prohibiting discrimination on the basis of sexual orientation should give way to business owners who do not wish to provide marriage services to same-sex couples. And after limiting the authority of the Environmental Protection Agency in air pollution cases last season, the court will hear a challenge to the Clean Water Act.

The liberal justices seem worried.

“The court shouldn’t walk around simply inserting itself into every burning issue in America, and especially it shouldn’t do so in a way that reflects one ideology or set of political views over another.” , Kagan said. week at Salve Regina, a Roman Catholic university in Rhode Island.

She said ignoring stare decisis – the doctrine of respecting past decisions in the absence of compelling evidence that change is necessary – undermines public trust. “It just doesn’t feel like the law when new judges appointed by a new president come in and start throwing the old stuff away,” she said.

The new justice this year is a liberal – Ketanji Brown Jackson, the first African-American woman on the court, was nominated by Biden to fill the seat of Stephen G. Breyer, who retired after 28 years. Jackson will not change the ideological makeup of the court.

Breyer said his last term in court was “very frustrating” in a recent interview with CNN. Breyer was known during his tenure for his pragmatism and attempts at compromise, and he appeared to caution the conservative majority against bold new moves.

“You start writing too rigidly. . . the world will come and bite you in the back,” he said.

Whatever the new term brings, it is unlikely to match the drama of its predecessor – a repudiation of decades of court precedent on abortion rights. Judge Samuel A. Alito Jr.’s draft opinion leaked in Dobbs v. Jackson Women’s Health Organizationsupporting A restrictive abortion law in Mississippi created unprecedented tension in court, which was once surrounded by a tall black fence to keep protesters away.

The opinion, joined by Judge Clarence Thomas and the three justices chosen by President Donald Trump, achieved a decades-long conservative goal of overthrowing deer.

“For many, it was a big celebration,” said Irv Gornstein, executive director of the Supreme Court Institute at Georgetown Law Center. “For many others, it shattered their faith in the Supreme Court. inside the courtyard, Dobbs has provoked a deeply contentious debate about what it means for the court to act with legitimacy.

Roberts voted to uphold Mississippi law, but not overturn it deer, calling the step too big a “shock” for the legal system. But during a speech in Colorado last month, he defended judges who make controversial decisions.

“All of our opinions are open to criticism,” Roberts said in remarks to judges and attorneys. “In fact, our members do an excellent job of criticizing certain opinions from time to time. But just because people disagree with an opinion doesn’t mean you should criticize the legitimacy of the tribunal.

The public conversation among the judges since Dobbs decision was remarkable. Alito gave what liberals interpreted as a boastful speech about the controversial decision this summer at a conference in Rome on religion and law.

“I had the honor of writing this mandate, I believe, the only Supreme Court decision in the history of this institution that has been lambasted by a whole host of foreign leaders who felt perfectly fine commenting on the American law,” Alito told the Notre Dame Religious Liberty Summit, sponsored by the Religious Liberty Initiative at the University of Notre Dame School of Law. He sarcastically took umbrage at criticism from Britain’s Prince Harry.

“What really hurt me – what really hurt me – was when the Duke of Sussex addressed the United Nations and seemed to compare the decision whose name cannot be pronounced with the attack against Ukraine,” Alito said.

Biden, in turn, invoked Alito last week at a rally of Democratic activists, where he said Republicans loyal to Trump “have just cheered and embraced the first Supreme Court decision of any kind.” our story – the first in our entire history that just didn’t. failed to preserve a constitutional freedom, it effectively took away a fundamental right.

He added: “Judge Alito said women can decide the outcome of this election – paraphrasing a quote in the actual decision. Well, he hasn’t seen anything yet.

As pointed as Kagan’s words sounded in her speeches to college audiences and at a court conference, she noted that she, Breyer and Judge Sonia Sotomayor were even sharper in their dissents to court rulings on last quarter finding the right to carry a gun outside the home for self-defense in a New York case, to loosen rules on public money going to religious schools, and to conclude that Congress needed to be more explicit if the EPA was to wield broad power in the fight against climate change.

The three’s dissent in the abortion case ran to 66 pages. Gornstein told an event at William & Mary Law School that there could be long-term damage to relationships on the court if the 6-on-3 pattern is continually repeated over the next term.

“This dissent said unequivocally that it was a decision without law, and that it was made only because five judges could do it, and the only difference between the previous law and this law is that there was a change in the makeup of the court,” Gornstein said, adding, “I think there’s a potential for ill will that carries over into this term and into future terms.

At the same event, New York University law professor Melissa Murray said there was “a whole cabinet of weird curiosities” about the court. She noted that Trump’s three nominees — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — pledged varying degrees of allegiance to watch the decision during their confirmation hearings, then voted to rescind. deer at the first opportunity.

And there’s the unprecedented example of Thomas’s wife, Virginia, taking an active role in encouraging legal challenges to Trump’s 2020 election defeat as such issues come before the Supreme Court. She agreed to an interview with the congressional committee investigating the riot at the Capitol on January 6, 2021.

Liberal dissents are not for other justices but ‘for the rest of the country, the public outside One First Street,’ Murray said, referring to the address of the Supreme Court building in northeast Washington. “I don’t know if they care about collegiality because they’re trying to alert the rest of the country.”

Conservatives say it’s unremarkable that new justices don’t vote the same as those they replace, and those of ideological ideology left would expect the same if the circumstances were reversed.

“It can’t be illegitimate just because someone came along who thinks differently,” said Erin Murphy, a Washington attorney who was on the legal team in the gun case. “What if they just come up with the result because they think it’s legally correct? Just because someone named them hoping they would, is that politics not the law? »

Murphy is a former Roberts clerk, who acknowledged last month that it had been a tough tenure. “I think just moving forward with things that were unhappy is the best way to respond to it,” he said.


Washington

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