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'Revolutionary' High Court Term So Far 07/02 08:43
Abortion, guns and religion -- a major change in the law in any one of these
areas would have made for a fateful Supreme Court term. In its first full term
together, the court's conservative majority ruled in all three and issued other
significant decisions limiting the government's regulatory powers.
WASHINGTON (AP) -- Abortion, guns and religion -- a major change in the law
in any one of these areas would have made for a fateful Supreme Court term. In
its first full term together, the court's conservative majority ruled in all
three and issued other significant decisions limiting the government's
regulatory powers.
And it has signaled no plans to slow down.
With former President Donald Trump's appointees in their 50s, the
six-justice conservative majority seems poised to keep control of the court for
years to come, if not decades.
"This has been a revolutionary term in so many respects," said Tara Leigh
Grove, a law professor at the University of Texas. "The court has massively
changed constitutional law in really big ways."
Its remaining opinions issued, the court began its summer recess Thursday,
and the justices will next return to the courtroom in October.
Overturning Roe v. Wade and ending a nearly half-century guarantee of
abortion rights had the most immediate impact, shutting down or severely
restricting abortions in roughly a dozen states within days of the decision.
In expanding gun rights and finding religious discrimination in two cases,
the justices also made it harder to sustain gun control laws and lowered
barriers to religion in public life.
Setting important new limits on regulatory authority, they reined in the
government's ability to fight climate change and blocked a Biden administration
effort to get workers at large companies vaccinated against COVID-19.
The remarkable week at the end of June in which the guns, abortion, religion
and environmental cases were decided at least partially obscured other notable
events, some of them troubling.
New Justice Ketanji Brown Jackson was sworn in Thursday as the first Black
woman on the court. She replaced the retiring Justice Stephen Breyer, who
served nearly 28 years, a switch that won't change the balance between liberals
and conservatives on the court.
In early May, the court had to deal with the unprecedented leak of a draft
opinion in the abortion case. Chief Justice John Roberts almost immediately
ordered an investigation, about which the court has been mum ever since. Soon
after, workers encircled the court with 8-foot-high fencing in response to
security concerns. In June, police made a late-night arrest of an armed man
near Justice Brett Kavanaugh's Maryland home, and charged him with attempted
murder of the justice.
Kavanaugh is one of three Trump appointees along with Justices Neil Gorsuch
and Amy Coney Barrett who fortified the right side of the court. Greg Garre,
who served as President George W. Bush's top Supreme Court lawyer, said when
the court began its term in October "the biggest question was not so much which
direction the court was headed in, but how fast it was going. The term answers
that question pretty resoundingly, which is fast."
The speed also revealed that the chief justice no longer has the control
over the court he held when he was one of five, not six, conservatives, Garre
said.
Roberts, who favors a more incremental approach that might bolster
perceptions of the court as a nonpolitical institution, broke most notably with
the other conservatives in the abortion case, writing that it was unnecessary
to overturn Roe, which he called a "serious jolt" to the legal system. On the
other hand, he was part of every other ideologically divided majority.
If the past year revealed limits on the chief justice's influence, it also
showcased the sway of Justice Clarence Thomas, the longest-serving member of
the court. He wrote the decision expanding gun rights and the abortion case
marked the culmination of his 30-year effort on the Supreme Court to get rid of
Roe, which had stood since 1973.
Abortion is just one of several areas in which Thomas is prepared to
jettison court precedents. The justices interred a second of their decisions,
Lemon v. Kurtzman, in ruling for a high school football coach's right pray on
the 50-yard line following games. It's not clear, though, that other justices
are as comfortable as Thomas in overturning past decisions.
The abortion and guns cases also seemed contradictory to some critics in
that the court handed states authority over the most personal decisions, but
limited state power in regulating guns. One distinction the majorities in those
cases drew, though, is that the Constitution explicitly mentions guns, but not
abortion.
Those decisions do not seem especially popular with the public, according to
opinion polls. Polls show a sharp drop in the court's approval rating and in
people's confidence in the court as an institution.
Justices on courts past have acknowledged a concern about public perception.
As recently as last September, Justice Amy Coney Barrett said, "My goal today
is to convince you that this court is not comprised of a bunch of partisan
hacks." Barrett spoke in at a center named for Senate Republican leader Mitch
McConnell of Kentucky, who engineered her rapid confirmation in 2020 and was
sitting on the stage near the justice.
But the conservatives, minus Roberts, rejected any concern about perception
in the abortion case, said Grove, the University of Texas professor.
Justice Samuel Alito wrote in his majority opinion that "not only are we not
going to focus on that, we should not focus on that," she said. "I'm
sympathetic as an academic, but I was surprised to see that coming from that
many real-world justices."
The liberal justices, though, wrote repeatedly that the court's
aggressiveness in this epic term was doing damage to the institution. Justice
Sonia Sotomayor described her fellow justices as "a restless and newly
constituted Court." Justice Elena Kagan, in her abortion dissent, wrote: "The
Court reverses course today for one reason and one reason only: because the
composition of this Court has changed."
In 18 decisions, at least five conservative justices joined to form a
majority and all three liberals were in dissent, roughly 30% of all the cases
the court heard in its term that began last October.
Among these, the court also:
-- Made it harder for people to sue state and federal authorities for
violations of constitutional rights.
-- Raised the bar for defendants asserting their rights were violated,
ruling against a Michigan man who was shackled at trial.
-- Limited how some death row inmates and others sentenced to lengthy prison
terms can pursue claims that their lawyers did a poor job representing them.
In emergency appeals, also called the court's "shadow" docket because the
justices often provide little or no explanation for their actions, the
conservatives ordered the use of congressional districts for this year's
elections in Alabama and Louisiana even though lower federal courts have found
they likely violated the federal Voting Rights Act by diluting the power of
Black voters.
The justices will hear arguments in the Alabama case in October, among
several high-profile cases involving race or elections, or both.
Also when the justices resume hearing arguments the use of race as a factor
in college admissions is on the table, just six years after the court
reaffirmed its permissibility. And the court will consider a controversial
Republican-led appeal that would vastly increase the power of state lawmakers
over federal elections, at the expense of state courts.
These and cases on the intersection of LGBTQ and religious rights and
another major environmental case involving development and water pollution also
are likely to result in ideologically split decisions.
Khiara Bridges, a professor at the University of California, Berkeley, law
school, drew a link between the voting rights and abortion cases. In the
latter, Alito wrote in Dobbs v. Jackson Women's Health Organization that
abortion should be decided by elected officials, not judges.
"I find it to be incredibly disingenuous for Alito to suggest that all that
Dobbs is doing is returning this question to the states and that people can
battle in the state about whether to protect fetal life or the interest of the
pregnant person," Bridges said. "But that same court is actively involved in
insuring that states can disenfranchise people."
Bridges also said the outcomes aligned almost perfectly with the political
aims of Republicans. "Whatever the Republican party wants, the Republican party
is going to get out of the currently constituted court," she said.
Defenders of the court's decisions said the criticism misses the mark
because it confuses policy with law. "Supreme Court decisions are often not
about what the policy should be, but rather about who (or which level of
government, or which institution) should make the policy," Princeton University
political scientist Robert George wrote on Twitter.
For now, there is no sign that either the justices or Republican and
conservative interests that have brought so many of the high-profile cases to
the court intend to trim their sails, Grove said.
That's in part because there's no realistic prospect of court reforms that
would limit the cases the justices could hear, impose term limits or increase
the size of the Supreme Court, said Grove, who served on President Joe Biden's
bipartisan Supreme Court commission on court reforms.
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