tag:theconversation.com,2011:/africa/topics/neil-gorsuch-35497/articlesNeil Gorsuch – The Conversation2024-02-08T20:48:00Ztag:theconversation.com,2011:article/2230582024-02-08T20:48:00Z2024-02-08T20:48:00Z‘Look for a reversal in a fairly short period of time’ − former federal judge expects Supreme Court will keep Trump on Colorado ballot<figure><img src="https://images.theconversation.com/files/574481/original/file-20240208-22-to0w8b.jpg?ixlib=rb-1.1.0&rect=17%2C8%2C5714%2C3806&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Even a day before the oral arguments, a line had formed outside the Supreme Court to sit in on the court's session.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpInsurrectionAmendment/2e5e06595e7441d3a9bb5c465301f565/photo">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p><em>To get the rare perspective of a former federal judge on the <a href="https://www.supremecourt.gov/oral_arguments/argument_transcript/2023">oral arguments at the Supreme Court</a>, The Conversation U.S. spoke with John E. Jones III. He is the president of Dickinson College and a <a href="https://www.dickinson.edu/homepage/1494/dickinson_college_president">retired federal judge</a> appointed by President George W. Bush and confirmed unanimously by the U.S. Senate in 2002. The case is about former President Donald Trump’s claim that he should be allowed on the presidential ballot in Colorado – and other states – because the language of the 14th Amendment does not apply to him.</em></p>
<p><em>During his time on the bench, Jones issued landmark decisions in high-profile cases, including a 2005 ruling that <a href="https://web.archive.org/web/20051221144316/http:/www.pamd.uscourts.gov/kitzmiller/kitzmiller_342.pdf">teaching intelligent design in science classes is unconstitutional</a>. Jones also issued a 2014 ruling <a href="https://www.scribd.com/document/225260457/1-13-cv-01861-Pennsylvania-Decision">legalizing same-sex marriage in Pennsylvania</a>, which preceded the U.S. Supreme Court decision reaching the same conclusion for the nation as a whole one year later.</em></p>
<p><strong>What’s your overall view of how things went this morning?</strong></p>
<p>I think it’s clear they’re going to reverse the <a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf">Colorado Supreme Court</a>. There’s no question in my mind. I would look for a reversal in a fairly short period of time. The surprise may be that some of the more liberal justices could join the majority. I would look for an overwhelming majority to reverse. I think you could potentially see some concurring opinions, although I think Chief Justice John Roberts will try to wrap it into one opinion.</p>
<p>There are a lot of parts to the arguments. You could have a justice who concurs in the result but for different reasons. But I think they will recognize that the more uniform they are on this, the better they’ll be. </p>
<p>There could be dissents, but in the end I just didn’t think that they were buying Colorado lawyer Jason Murray’s arguments that each state has the power to judge for itself whether Trump’s conduct before, on and after Jan. 6, 2021, constituted insurrection, and that if it did, they can independently evaluate whether Trump is <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">ineligible to hold office</a> because of the 14th Amendment. I think there is the possibility of a unanimous opinion. I’m not going to be that bold, but Murray had a tough day.</p>
<p>Murray clerked for Justice Neil Gorsuch when he was on the 10th Circuit Court of Appeals and also clerked for Justice Elena Kagan on the Supreme Court. Former clerks are part of judges’ extended family. But sometimes judges and justices will bend over backwards to really nail their clerks, just to show that they’re not getting any kind of special treatment. I thought they were pretty rough on Murray today. <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-719_feah.pdf#page=80">Gorsuch really pounded him</a> – and he and Gorsuch probably have a very abiding relationship.</p>
<p><strong>What can we learn about how the justices are thinking about the case?</strong></p>
<p>There’s an old adage that you shouldn’t necessarily predict a result based on questions at oral argument. But it depends. Sometimes, judges and justices are intentionally provocative with their questions – they don’t necessarily signal their mindset or where they’re going. Other times they’re more transparent. </p>
<p>I thought today <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-719_feah.pdf">the questions</a> were really indicative of the perspectives of the questioners.</p>
<p>There’s a real problem to the position of the voters in Colorado seeking to get Trump off the ballot: If the decision is affirmed, you have the potential to have 50 different states all conducting some type of proceeding for which there is no template whatsoever and coming up with disparate results. </p>
<p>That creates different records in different places, which comes down to a due process argument – about the due process afforded to Trump and what mechanism he may have when his ability to get on the ballot is challenged.</p>
<p>The justices are afraid of future cases, where somebody tries to bump somebody off the ballot – even for political reasons or for no reason at all. There’s no standard for adjudicating this. That’s a problem. The prospect of retaliatory actions was talked about, and in this partisan political climate you could see somebody try to knock Joe Biden off the ballot. Then you’d have a court struggling without a standard, trying to figure out what, if anything, Biden did that disqualifies him.</p>
<p>On the side of Colorado, the argument is intertwining Section 3 of the 14th Amendment and the <a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-2">electors clause of the U.S. Constitution</a>, which says that states have the ability to set certain rules and regulations for the conduct of elections underneath Congress’ power to regulate national elections.</p>
<p>They’re saying that the states have the power to decide whether to disqualify someone under their powers in the electors clause. I think that’s a very tough argument to make because of the lack of uniformity. The justices appear concerned about the sheer chaos that would stem from 50 different states adjudicating this question. </p>
<p><strong>The Colorado solicitor general, Shannon Stevenson, said 50 states operating separately is a positive feature of the Constitution’s structure.</strong></p>
<p>During oral arguments they talked about the 1994 case <a href="https://www.oyez.org/cases/1994/93-1456">U.S. Term Limits v. Thornton</a>. It was a case that involved 20-plus states that had enacted term limits for members of Congress. Of course, it got challenged up to the Supreme Court, and in the Constitution there’s no amendment that imposes term limits. What that ruling said was that states can’t add conditions for holding public office that are not within the text of the Constitution. It’s a very technical argument but not a bad argument. </p>
<p><strong>What are your observations about the 14th Amendment as it applies to this case?</strong></p>
<p>This was a poorly written section. It was a reactionary section that was essentially enacted, as stated by the justices, as a compromise that made no one particularly happy. It’s vague.</p>
<p>It doesn’t enumerate the president in the list of people it covers – you can see that. So does it cover the president when it talks about people who are an “<a href="https://constitution.congress.gov/constitution/amendment-14/">officer of the United States</a>” or who holds an “office … under the United States”? Then we play this semantical game. I don’t find that particularly availing, though I think you could fit the president into the rubric.</p>
<p>I think it is a very easy argument to make that Trump was an insurrectionist. But there are no standards. Where’s the due process? </p>
<p>There’s an element of trying to torture a very poorly written section down into something that fits the situation in 2024. That creates enormous headaches for lawyers and judges and justices. It’s just not clear what the amendment means. And when there’s unclarity like that, that makes for a tough go for a justice.</p>
<p>The way Kagan, for example, may write an opinion is to really lean on the fact that it was an insurrection, but it’s a bad section of the Constitution here. She might say our eyes don’t deceive and we know what we saw on Jan. 6, 2021, but there has to be a process to this.</p><img src="https://counter.theconversation.com/content/223058/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John E. Jones III does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A retired federal judge examines the oral arguments the Supreme Court heard on a case in which Colorado has blocked former President Donald Trump from the ballot.John E. Jones III, President, Dickinson CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2058172023-06-02T12:42:09Z2023-06-02T12:42:09ZJudging the judges: Scandals have the potential to affect the legitimacy of judges – and possibly the federal judiciary, too<figure><img src="https://images.theconversation.com/files/529426/original/file-20230531-27-2u13q6.jpeg?ixlib=rb-1.1.0&rect=37%2C22%2C4955%2C3300&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Activists call for ethics reform in the Supreme Court at the U.S. Capitol in Washington on May 2, 2023.
</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SenateSupremeCourtEthics/0005629d70854888a56e772d5c3fb50b/photo?Query=Clarence%20Thomas&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=909&currentItemNo=2">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p>U.S. Supreme Court Justice Clarence Thomas is no stranger to controversy. </p>
<p>In 1991, during his confirmation hearings in the Senate, Thomas faced <a href="https://www.nytimes.com/1991/10/12/us/the-thomas-nomination-excerpts-from-senate-s-hearings-on-the-thomas-nomination.html">accusations of sexual harassment</a> from a former colleague and law school professor, Anita Hill. </p>
<p>More recently, Thomas’ personal relationship with a real estate billionaire, Republican donor Harlan Crow, has come under scrutiny. Crow paid for <a href="https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow">lavish vacations</a> for Thomas and his wife. Thomas and Crow had undisclosed <a href="https://www.propublica.org/article/clarence-thomas-harlan-crow-real-estate-scotus">real estate deals</a>. Crow also made <a href="https://www.propublica.org/article/clarence-thomas-harlan-crow-private-school-tuition-scotus">tuition payments for Thomas’ grandnephew</a>.</p>
<p>Nearly all of these gifts and financial dealings <a href="https://www.nytimes.com/2023/03/29/us/politics/supreme-court-trips-gifts-disclosures.html">were absent from Thomas’ required financial disclosure forms</a>. While there is uncertainty on the specific reporting requirements for the vacations and real estate deals, it seems likely that the tuition payments received on behalf of Thomas’ family would be subject to disclosure requirements as financial gifts. </p>
<p>These recent discoveries have prompted backlash, ranging from calls for <a href="https://www.washingtonpost.com/opinions/2023/04/26/supreme-court-ethics-reform-clarence-thomas/">ethics reform</a> to <a href="https://www.reuters.com/world/us/democratic-lawmaker-ocasio-cortez-wants-us-supreme-court-justice-thomas-2023-04-09/">demands for impeachment</a>. </p>
<p>But scandal and controversy are not new to the federal courts. As political science professors, we study how scandals and other phenomena <a href="https://doi.org/10.1017/S104909652200138X">affect public support for the Supreme Court</a>. Prior research finds that when citizens perceive the courts as legitimate, citizens are less willing to challenge judicial decisions – even those that <a href="https://doi.org/10.1177/106591290505800201">individuals disagree with</a>.</p>
<p>Ultimately, scandal has a strong potential to undermine public perceptions. And as legitimacy diminishes, judges are likely to face increased public scrutiny for their policy decisions.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/529427/original/file-20230531-25-lpzyyz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An older man with glasses and gray hair in a black judicial robe." src="https://images.theconversation.com/files/529427/original/file-20230531-25-lpzyyz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/529427/original/file-20230531-25-lpzyyz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/529427/original/file-20230531-25-lpzyyz.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/529427/original/file-20230531-25-lpzyyz.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/529427/original/file-20230531-25-lpzyyz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=506&fit=crop&dpr=1 754w, https://images.theconversation.com/files/529427/original/file-20230531-25-lpzyyz.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=506&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/529427/original/file-20230531-25-lpzyyz.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=506&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Supreme Court Justice Clarence Thomas has been the focus of numerous recent revelations about his entanglements with a prominent and wealthy Republican donor.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/associate-us-supreme-court-justice-clarence-thomas-poses-news-photo/1243792284?adppopup=true">Olivier Douliery/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Judicial scandals different from political scandals</h2>
<p>Beyond Thomas, other Supreme Court justices and <a href="https://www.newsweek.com/ethics-scandals-supreme-court-justice-spouses-1797768">their close family members</a> have recently faced allegations of wrongdoing. </p>
<p>These range from <a href="https://www.nytimes.com/2018/09/27/us/politics/brett-kavanaugh-confirmation-hearings.html">Justice Brett Kavanaugh’s alleged sexual assault</a> to <a href="https://www.politico.com/news/2023/04/25/neil-gorsuch-colorado-property-sale-00093579">a controversial real estate sale</a> involving Justice Neil Gorsuch.</p>
<p>Recent history is replete with instances of judicial nominees and federal judges immersed in scandal and controversy – from <a href="https://www.nytimes.com/2010/12/09/us/politics/09judge.html">taking bribes</a> to <a href="https://www.justice.gov/usao-mn/pr/former-united-states-tax-court-judge-and-husband-sentenced-multi-year-tax-fraud">tax fraud</a>, from <a href="https://www.ajc.com/news/local/judge-camp-sentenced-days-prison/FQhgyRbi1JD1oK28fQRGoJ/">using illicit drugs with an exotic dancer</a> to <a href="https://www.washingtonpost.com/world/national-security/prominent-appeals-court-judge-alex-kozinski-accused-of-sexual-misconduct/2017/12/08/1763e2b8-d913-11e7-a841-2066faf731ef_story.html">making court clerks watch obscene material</a>. </p>
<p>These behaviors would be a problem in any government institution. Yet, unlike democratically elected officials, all <a href="https://www.uscourts.gov/judges-judgeships/about-federal-judges">U.S. Supreme Court justices and judges on the lower federal courts</a> are unelected and insulated from direct electoral repercussions. Presidents nominate Supreme Court justices and federal court judges when a vacancy emerges. Once confirmed by a majority in the Senate, these individuals cannot be removed from the bench unless they are impeached by the House of Representatives and removed by a two-thirds majority vote in the Senate.</p>
<p>Such institutional dynamics provide broad protections for federal judges, including those embroiled in scandal and controversy. Beyond the threat of impeachment and removal, no other recourse is available to sanction judges for improprieties or ethical controversies. </p>
<p>In fact, Congress has moved to impeach lower court federal judges in <a href="https://www.nytimes.com/2010/12/09/us/politics/09judge.html">only the most extreme circumstances</a>. To date, no Supreme Court justice has been impeached and removed from office, although Samuel Chase was impeached in 1801 but ultimately acquitted in the Senate.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/529430/original/file-20230531-29-56uz5r.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A middle-aged man from an earlier century dressed in a black robe and with long gray hair." src="https://images.theconversation.com/files/529430/original/file-20230531-29-56uz5r.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/529430/original/file-20230531-29-56uz5r.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=746&fit=crop&dpr=1 600w, https://images.theconversation.com/files/529430/original/file-20230531-29-56uz5r.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=746&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/529430/original/file-20230531-29-56uz5r.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=746&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/529430/original/file-20230531-29-56uz5r.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=937&fit=crop&dpr=1 754w, https://images.theconversation.com/files/529430/original/file-20230531-29-56uz5r.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=937&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/529430/original/file-20230531-29-56uz5r.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=937&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">No Supreme Court justice has been impeached and removed from office, although Samuel Chase, pictured here, was impeached in 1801 but ultimately acquitted in the Senate.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/engraved-portrait-of-american-jurist-delegate-to-the-news-photo/52909829?adppopup=true">Stock Montage/Getty Images</a></span>
</figcaption>
</figure>
<h2>Public opinion and federal court legitimacy</h2>
<p>Given this reality, scholars, pollsters and commentators focus their attention on how the public may punish judges and the courts through another means: judgments of their legitimacy.</p>
<p>Since the courts are unable to enforce their rulings – they do not have a police force or a military at their disposal – they must rely on public support to ensure broad compliance and implementation of their decisions. </p>
<p>When citizens perceive that federal courts exercise power legitimately, they are unlikely to challenge decisions they disagree with or the judges who made them. The Supreme Court historically has a <a href="https://doi.org/10.1146/annurev-lawsocsci-110413-030546">deep reservoir of goodwill</a> among the public. Scholarly evidence suggests that the Supreme Court uniquely benefits from what’s called a <a href="https://doi.org/10.1111/j.1540-5907.2008.00362.x">positivity bias</a>, which means that people tend to perceive it more positively compared to Congress and the president. </p>
<p>Yet the federal judiciary faces threats to its legitimacy across all levels, from the Supreme Court to district courts. These include political polarization, which can lead the public to see courts as blatantly partisan institutions. Political science research demonstrates that support for the Supreme Court varies depending on the <a href="https://doi.org/10.1111/ajps.12150">partisan viewpoint of survey respondents</a>. Studies also suggest that the public views the Supreme Court <a href="https://doi.org/10.1177/10659129211006196">less favorably</a> when the court is perceived as politically distant from one’s own partisan preferences. Researchers also find that perceptions that the court favors liberal policies result in <a href="https://doi.org/10.1177/1065912920950482">lower job approval ratings</a>.</p>
<p>What researchers have less insight on is whether the public alters its support for the judiciary in light of scandal. The potentially corrosive implications of scandal have been thrust into the limelight with the recent revelations of impropriety concerning several Supreme Court justices.</p>
<h2>Punishment for scandals</h2>
<p>Scandal holds the potential to shake the confidence and trust the American public has in its judicial institutions. <a href="https://www.cambridge.org/core/journals/ps-political-science-and-politics/article/your-honors-misdeeds-the-consequences-of-judicial-scandal-on-specific-and-diffuse-support/5CDA6C8310E01A1E1FFCF66A60C05ADD">Our research</a>, which predates the recent media reports on Thomas, looks at whether scandals meaningfully diminish citizen support for members of the judiciary, and the court as an institution. </p>
<p>Relying on multiple survey experiments, we examined the effect of varying scandals – ethical, financial and sexual – among hypothetical Supreme Court nominees and hypothetical sitting lower court judges. </p>
<p>In both cases and across scandal types, we found that the public punishes individual nominees and judges through diminished support. That is, respondents provided lower levels of job approval for a hypothetical judge who faced accusations of scandal compared to a judge who faced no such accusation. Notably, however, scandals did not harm the public’s perceptions of the federal courts’ legitimacy. </p>
<p>In other words, we found no effect of hypothetical scandal on respondents’ beliefs that courts are generally fair and should retain the right to make controversial decisions, even when a majority disagrees. This suggests that while the public holds judges associated with scandal in low regard, the negative effects of individual scandals do not permeate the institution of the courts. </p>
<p>We cannot say whether the harmful effects of scandal persist over time. Perhaps, negative impressions of individuals immersed in scandal will dissipate. Additional research is needed to examine whether a spate of scandals – involving multiple judges, with greater degrees of perceived severity – would result in a critical mass that undermines the foundations of public support for the courts as esteemed institutions. </p>
<p>Yet so far, our findings suggest that the latest round of scandals and controversies surrounding justices’ personal behavior will have minimal effect on eroding public support for federal courts.</p><img src="https://counter.theconversation.com/content/205817/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ali S. Masood receives funding from the National Science Foundation.</span></em></p><p class="fine-print"><em><span>Joshua Boston received funding for this research from the Bowling Green State University Office of Sponsored Programs and Research and Department of Political Science. </span></em></p><p class="fine-print"><em><span>Benjamin J. Kassow and David Miller do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Courts have no army or police force to enforce their decisions. Their power rests on their legitimacy in the public eye. How does scandal affect that?Ali S. Masood, Assistant Professor of Politics, Oberlin College and ConservatoryBenjamin J. Kassow, Associate Professor of Political Science and Public Administration, University of North DakotaDavid Miller, Assistant Professor of Political Science, East Tennessee State UniversityJoshua Boston, Assistant Professor of Political Science, Bowling Green State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2004802023-02-28T13:26:15Z2023-02-28T13:26:15ZMocking the police got an Ohio man arrested – and the Supreme Court ignored The Onion’s plea to define the limits of parody<figure><img src="https://images.theconversation.com/files/512501/original/file-20230227-481-pgq3w7.jpeg?ixlib=rb-1.1.0&rect=6%2C3%2C2302%2C1277&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Satire can be dangerous.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/satirical-cartoonist-royalty-free-illustration/533153903?phrase=political%20satire&adppopup=true">DigitalVision Vectors/Getty Images</a></span></figcaption></figure><p>Can Americans be jailed for making fun of the government? Most would respond with a resounding “No, of course not! The First Amendment protects us from that.”</p>
<p>But <a href="https://www.cleveland.com/parma/2016/03/parma_man_charged_with_felony.html">Anthony Novak learned otherwise in March 2016</a>, after he created and posted a fake version of the Parma, Ohio, Police Department’s Facebook page. </p>
<p>He copied the department’s name and profile picture onto his satirical <a href="https://www.supremecourt.gov/DocketPDF/22/22-293/251523/20230106102432958_22-293%20Brief%20in%20Opposition%20FINAL.pdf">Facebook page</a>, but unlike the official page, Novak’s was designated a “Community” page and displayed the slogan: “We no crime,” a parody of the department’s actual slogan, “We know crime.”</p>
<p>During its short life – the page was available for only about 12 hours – Novak published six posts, all parodies. One – echoing Jonathan Swift’s classic satire, “<a href="https://www.gutenberg.org/files/1080/1080-h/1080-h.htm">A Modest Proposal</a>,” that suggested Ireland’s poor sell their children as food for the rich - announced a new law forbidding residents to give “ANY HOMELESS person food, money, or shelter in our city for 90 days,” so that “the homeless population eventually leave our city due to starvation.”</p>
<p>Parma police promptly posted a notice on its official page, warning residents not to be fooled by Novak’s parody. Novak in turn posted that same notice on his own page, but also deleted the few posted reader comments opining that his page was fake. After police announced a criminal investigation, Novak took his page down entirely.</p>
<p>Novak asked the U.S. Supreme Court to rule in the resulting court case stemming from the police’s heavy-handed treatment of him. In late February 2023, the high court refused to take the case, forfeiting an opportunity to make a definitive statement about how far free speech protections extend when it comes to satire about government.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A post on a fake Facebook page for the Parma Police Department that says no one will be allowed to provide material help to homeless people." src="https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=641&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=641&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=641&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=805&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=805&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=805&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A screenshot from Anthony Novak’s fake Parma Police Department Facebook page.</span>
<span class="attribution"><a class="source" href="https://www.oyez.org/cases/1987/86-1278">City of Parma brief to U.S. Supreme Court</a></span>
</figcaption>
</figure>
<h2>First Amendment protection?</h2>
<p>Here’s how the case developed: Citing a state law making it a crime to use a computer <a href="https://codes.ohio.gov/ohio-revised-code/section-2909.04#:%7E:text=(B)%20No%20person%20shall%20knowingly,%2C%20commercial%2C%20or%20governmental%20operations">to disrupt police operations</a>, the police searched Novak’s apartment, seized his phone and laptop and jailed him for four days. A jury <a href="https://www.cleveland.com/court-justice/2016/08/jury_acquits_parma_man_who_mad.html">acquitted him of the felony charge in August 2016</a>.</p>
<p>Novak then <a href="https://www.cleveland.com/court-justice/2016/09/parma_man_sues_over_arrest_pro.html">filed a lawsuit against the police</a>, arguing that they had violated his First Amendment rights. </p>
<p>The law enforcement officials replied that they were entitled to “<a href="https://www.ncsl.org/civil-and-criminal-justice/qualified-immunity#:%7E:text=So%20qualified%20immunity%20protects%20states,to%20states%20and%20local%20governments.">qualified immunity</a>,” a legal doctrine protecting government employees from liability for conduct that has not been clearly established as unconstitutional. </p>
<p>A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, which has jurisdiction over cases from Ohio, Kentucky, Michigan and Tennessee, ruled that although parody is protected speech, copying the department’s official warning and deleting the comments questioning the page’s authenticity might not be. It concluded that the officers could have reasonably believed that some of Novak’s Facebook activity violated the criminal statute and <a href="https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0090p-06.pdf">was not protected by the First Amendment</a>. </p>
<p>Novak asked the Supreme Court to review his <a href="https://www.supremecourt.gov/DocketPDF/22/22-293/238740/20220926094542129_Petition%20for%20Writ%20of%20Certiorari%20Novak%20v.%20Parma.pdf">case in September 2022.</a> He argued that police should not be allowed to arrest an individual solely for making fun of the government, yet “that is exactly what happened here. If that is not an obvious violation of the Constitution, it’s hard to imagine what would be.” Novak also invited the high court to reconsider the qualified immunity doctrine, especially in cases where protected speech is the basis for arresting someone.</p>
<p>The police response solemnly predicted that a ruling in Novak’s favor could lead to a virtual law enforcement Armageddon, confusing the public, eroding their trust in official social media sites, posing a threat to safety and “<a href="https://www.supremecourt.gov/DocketPDF/22/22-293/251523/20230106102432958_22-293%20Brief%20in%20Opposition%20FINAL.pdf">exacerbate[ing] the nationwide crisis police agencies are experiencing</a>.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An official Parma Police Department Facebook posting that says 'The Parma Police Department would like to warn the public that a fake Parma Police Facebook page has been created.'" src="https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=392&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=392&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=392&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=492&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=492&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=492&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Parma’s police department posted on its legitimate Facebook page a warning about the satirical page.</span>
<span class="attribution"><a class="source" href="https://www.facebook.com/261731697214075/posts/the-parma-police-department-would-like-to-warn-the-public-that-a-fake-parma-poli/949891288398109/">City of Parma Police Department Facebook page</a></span>
</figcaption>
</figure>
<h2>The Onion weighs in</h2>
<p>Novak’s petition was supported by amicus curiae briefs by politically diverse “friends of the court,” including the satirical news sites <a href="https://www.supremecourt.gov/DocketPDF/22/22-293/242292/20221003125252896_35295545_1-22.10.03%20-%20Novak-Parma%20-%20Onion%20Amicus%20Brief.pdf">The Onion</a> and <a href="https://www.supremecourt.gov/DocketPDF/22/22-293/244213/20221028092221628_Babylon%20Bee%20-%20Amicus%20Brief.pdf">The Babylon Bee</a>, who argued that their own survival depends on First Amendment protection for parody. </p>
<p>Acknowledging that its own writing has <a href="https://abcnews.go.com/International/times-people-fooled-onion/story?id=31444478">occasionally confused some readers</a>, The Onion pointed out that satire only works if it credibly mimics whatever it is parodying. The courts, they wrote, should not assume “that ordinary readers are less sophisticated and more humorless <a href="https://www.supremecourt.gov/DocketPDF/22/22-293/242596/20221006144840674_Novak%20Parma%20Onion%20Amicus%20Brief.pdf">than they actually are</a>.” </p>
<p>The Onion concluded by declaring it “intends to continue its socially valuable role bringing the disinfectant of sunlight into the halls of power. And it would vastly prefer that sunlight not to be measured out to its writers in 15-minute increments in an exercise yard.”</p>
<p>But on Feb. 21, 2023, the Supreme Court chose to deny the petition for certiorari. The court <a href="https://www.supremecourt.gov/orders/courtorders/022123zor_g20h.pdf">would not hear the case.</a> </p>
<p>Coincidentally, this order was issued three days before the 35th anniversary of the release of the Supreme Court’s opinion in <a href="https://www.oyez.org/cases/1987/86-1278">Hustler Magazine, Inc. v. Falwell</a>. That major ruling established that the legal tradition protecting robust criticism of public figures and government operations must extend to satirical cartoons and parody, however “caustic” they may be. </p>
<p>From the 19th century caricaturist and editorial cartoonist <a href="https://www.illustrationhistory.org/artists/thomas-nast">Thomas Nast</a> to the creators of the animated <a href="https://www.theguardian.com/tv-and-radio/2023/feb/22/baseless-nonsense-meghan-and-harry-wont-sue-south-park-for-mocking-them">“South Park” TV show</a> and movie, satirists do their best work when they are free to skewer public officials and celebrities without fear of legal consequences. </p>
<p>And as then-Chief Justice William Rehnquist, the author of the Hustler opinion and <a href="https://www.cnn.com/2012/10/28/justice/rehnquist-legacy/index.html">himself a one-time editorial cartoonist</a>, wrote for the unanimous court, “From the viewpoint of history, it is clear that our political discourse would have been considerably poorer without them.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A screenshot of a fake Facebook page announcing the Parma Police Department's 'stay inside and catch up with the family day.'" src="https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=543&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=543&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=543&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=682&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=682&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=682&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">One of the Facebook parody pages made by Anthony Novak, satirizing the Parma Police Department in Ohio.</span>
<span class="attribution"><a class="source" href="https://ij.org/wp-content/uploads/2022/09/Novak-Facebook-Post-02.png">Institute for Justice</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>Violating American tradition</h2>
<p>The Hustler case, however, was a civil action for emotional distress filed by the Rev. Jerry Falwell after the magazine published an “ad parody” making fun of the nationally known fundamentalist minister. </p>
<p>By contrast, Novak was arrested, detained and criminally prosecuted for lampooning the police, who were seeking to deprive him of his liberty and, presumably, serve as a warning to others.</p>
<p>Using criminal statutes to silence satirists and parodists occurs in <a href="https://www.cnn.com/2023/01/29/europe/russian-teen-social-media-ukraine-war-intl-cmd/index.html">countries like Russia</a>, <a href="https://rsf.org/en/iranian-journalist-gets-long-jail-term-satirical-comments-about-mullah-regime">Iran</a> and <a href="https://www.amnesty.org/en/latest/news/2022/09/thailand-mock-fashion-show-protester-sentenced-to-two-years-for-insulting-the-monarchy/">Thailand</a>, where officials tolerate no disrespect. I believe that it is distinctly un-American. </p>
<p>Yet as recently as 2010, Justice Neil Gorsuch, then a judge for the 10th Circuit U.S. Court of Appeals, wrote that “the Supreme Court has yet to address <a href="https://casetext.com/case/mink-v-knox-3">how far the First Amendment goes in protecting parody</a>.” That was in a case challenging a prosecutor’s claim of qualified immunity after she approved the search, seizure and arrest of a parodist for allegedly violating the Colorado criminal libel statute. </p>
<p>Refusing to review Novak’s case is a missed opportunity for the Court to consider and decide once and for all whether the First Amendment protects satire and parody. And that’s no joke.</p><img src="https://counter.theconversation.com/content/200480/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane E. Kirtley was executive director of the Reporters Committee for Freedom of the Press from 1985-1999, and during that time authored an amicus brief before the Supreme Court in the Hustler Magazine, Inc. v. Falwell case. She received no funding for this brief from any of the parties to the case. In 2018, as Silha Professor and Director of the Silha Center, she co-curated a symposium, State of Our Satirical Union, at the University of Minnesota, marking the 30th Anniversary of the Hustler Magazine, Inc. v. Falwell case. The event was sponsored by:
The University of Minnesota's Silha Center for the Study of Media Ethics and Law,
The Association of American Editorial Cartoonists,
The Minnesota Journalism Center,
The Hubbard School of Journalism and Mass Communication, and
The Herb Block Foundation.</span></em></p>A satirist posted a parody of a police Facebook page. He was arrested and jailed for four days. How far do free speech protections extend when it comes to satire about government?Jane E. Kirtley, Professor of Media Ethics and Law, University of MinnesotaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1862642022-07-21T12:25:16Z2022-07-21T12:25:16ZSupreme Court reversed almost 200 years of US law and tradition upholding tribal sovereignty in its latest term<figure><img src="https://images.theconversation.com/files/474978/original/file-20220719-24-7pe1ty.jpeg?ixlib=rb-1.1.0&rect=14%2C0%2C4775%2C3232&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Principal Chief of the Cherokee Nation Chuck Hoskin Jr. speaks in Tahlequah, Okla. A U.S. Supreme Court ruling is upending decades of law in support of tribes. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtTribesJurisdiction/432143cedc474ecabc2a923b6d242299/photo?Query=oklahoma%20tribe&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=316&currentItemNo=2">AP Photo/Michael Woods</a></span></figcaption></figure><p>Over the past 50 years, Congress and the U.S. Supreme Court have increasingly diverged in how they view the laws that relate to Indian tribes. Congress has passed significant legislation that expands tribal governments’ sovereignty and control over their land, while the Supreme Court <a href="https://ssrn.com/abstract=820346">has ignored</a> and reversed long-standing principles of federal Indian law that protected tribal sovereignty and prevented the states from exercising authority in Indian country. </p>
<p>This trend at the court was seen most recently in a ruling from late June, which, as one longtime court observer put it, wiped away “<a href="https://www.scotusblog.com/2022/06/in-5-4-ruling-court-dramatically-expands-the-power-of-states-to-prosecute-crimes-on-reservations/">centuries of tradition and practice</a>.” Justice <a href="https://www.oklahoman.com/story/news/2022/07/11/oklahoma-v-castro-huerta-ruling-us-supreme-court-tribal-leaders-experts-respond/65369770007/">Neil Gorsuch scorned the ruling in his dissent</a>: “Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.”</p>
<p>From my perspective as an <a href="https://law.wayne.edu/profile/ew9862">expert in federal Indian law</a>, the most recent case is noteworthy because it says that states may exercise authority in Indian Country even without express congressional authorization. For centuries, that was not the case.</p>
<p>Here’s the background:</p>
<p>The <a href="https://constitution.congress.gov/browse/article-1/section-8/">U.S. Constitution</a> gives Congress authority over Indian affairs, including the power to diminish and restore tribal powers. Since 1885, <a href="https://www.justice.gov/archives/jm/criminal-resource-manual-679-major-crimes-act-18-usc-1153">Congress has granted authority</a> to federal prosecutors to try major crimes committed in Indian Country, such as murder and rape, in federal courts. Tribal governments <a href="https://www.tribal-institute.org/lists/jurisdiction.htm">can probably try these</a> crimes, but Congress has <a href="https://www.law.cornell.edu/uscode/text/25/1302">limited the sentences tribal courts</a> can impose on convicted offenders. As a result, the federal government has been the primary enforcer of criminal law in Indian Country for a long time.</p>
<p>With limited exceptions, the Supreme Court has interpreted the Constitution to say that the states do not have authority in Indian Country unless Congress expressly grants such authority. Congress has rarely authorized states to exercise authority in Indian Country, and it has required tribal consent before granting any such authority to a state since 1968.</p>
<p>The background to this allocation of authority is a <a href="https://www.washingtonpost.com/opinions/2022/07/01/castro-huerta-oklahoma-supreme-court-tribal-sovereignty/">long history of states’ </a>trying to usurp tribal sovereignty by asserting jurisdiction over Indians in Indian Country. States’ early attempts to govern Indians led to violence and encouraged the Founding Fathers <a href="https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/2014_vol_40/vol--40--no--1--tribal-sovereignty/short_history_of_indian_law/">to grant all powers over Indian affairs to the federal government</a> in the Constitution. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/347409/original/file-20200714-139854-dnhikl.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A map of a state with tribal areas marked." src="https://images.theconversation.com/files/347409/original/file-20200714-139854-dnhikl.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/347409/original/file-20200714-139854-dnhikl.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=358&fit=crop&dpr=1 600w, https://images.theconversation.com/files/347409/original/file-20200714-139854-dnhikl.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=358&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/347409/original/file-20200714-139854-dnhikl.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=358&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/347409/original/file-20200714-139854-dnhikl.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=450&fit=crop&dpr=1 754w, https://images.theconversation.com/files/347409/original/file-20200714-139854-dnhikl.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=450&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/347409/original/file-20200714-139854-dnhikl.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=450&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Congress granted Eastern Oklahoma to Native tribes in the 19th century.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Okterritory.png">Kmusser/Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>The latest case</h2>
<p>Yet on June 29, 2022, in <a href="https://www.law.cornell.edu/supremecourt/text/21-429">Oklahoma v. Castro-Huerta</a>, the Supreme Court ruled that Oklahoma could prosecute Manuel Castro-Huerta, a non-Indian, in a case of neglect and abuse of an Indian child on the Cherokee reservation. By ruling that Oklahoma may prosecute non-Indians for crimes committed against Indians in Indian Country, the court <a href="https://www.law.cornell.edu/supremecourt/text/21-429">granted states authority in Indian Country</a>, even though the relevant law does not expressly authorize states to do that. It was a serious blow to tribal governments across the nation.</p>
<p>The Castro-Huerta case arose out of the state of Oklahoma’s prosecution and conviction in 2015 of Castro-Huerta in the neglect of his legally blind and developmentally disabled 5-year-old Cherokee stepdaughter by severely undernourishing her. While his appeal was pending, the Supreme Court in 2020 decided <a href="https://www.law.cornell.edu/supremecourt/text/18-9526">McGirt v. Oklahoma</a>, which held that the Muscogee Creek reservation in Oklahoma is Indian Country. That ruling meant that federal criminal laws applied to much of eastern Oklahoma as Indian Country and enabled the federal government – instead of the state of Oklahoma – to prosecute crimes committed by and against Indians there. </p>
<p><a href="https://theconversation.com/oklahoma-state-officials-resist-supreme-court-ruling-affirming-tribal-authority-over-american-indian-country-175726">Courts have since held</a> that the lands in Oklahoma of five additional tribes – the Cherokee Nation, the Choctaw Nation, the Seminole Nation, the Chickasaw Nation and the Quapaw Nation – also remain Indian Country. This meant that the relevant law, enacted in 1817 and known as the <a href="https://www.law.cornell.edu/uscode/text/18/1152">General Crimes Act</a>, extends federal criminal laws even farther into eastern Oklahoma and enables federal prosecution of crimes committed against Indians there.</p>
<p>In light of the McGirt decision, Castro-Huerta claimed that only the federal government had the authority to prosecute him, not the state, because his crimes occurred against an Indian within Indian country. </p>
<p>Before this case, no state had argued that states, in addition to the federal government, had criminal jurisdiction in Indian Country under the General Crimes Act. Yet the state of Oklahoma made just this argument in response to Castro-Huerta’s claims. It also actively <a href="https://theconversation.com/oklahoma-state-officials-resist-supreme-court-ruling-affirming-tribal-authority-over-american-indian-country-175726">resisted implementation</a> of the McGirt decision and asked the Supreme Court to reverse it over 40 times. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/474984/original/file-20220719-20-wip6b4.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two photos, one of a large white building with a dome; another a large white building with an American flag flying in front of it." src="https://images.theconversation.com/files/474984/original/file-20220719-20-wip6b4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/474984/original/file-20220719-20-wip6b4.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=299&fit=crop&dpr=1 600w, https://images.theconversation.com/files/474984/original/file-20220719-20-wip6b4.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=299&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/474984/original/file-20220719-20-wip6b4.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=299&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/474984/original/file-20220719-20-wip6b4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=376&fit=crop&dpr=1 754w, https://images.theconversation.com/files/474984/original/file-20220719-20-wip6b4.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=376&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/474984/original/file-20220719-20-wip6b4.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=376&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The U.S. Congress, left, tries to expand Indian sovereignty; the U.S. Supreme Court, right, has consistently been diminishing those rights over the past 50 years.</span>
<span class="attribution"><span class="source">The Capitol: iStock / Getty Images Plus; the Supreme Court: Mike Klein, Getty Images</span></span>
</figcaption>
</figure>
<h2>Two visions of federal Indian law</h2>
<p>Conflicts between state and tribal governments are not new; states have long tried to assert power – often violently – over sovereign tribes. In 1790, the first Congress enacted the <a href="https://pages.uoregon.edu/mjdennis/courses/hist469_trade.htm">Trade and Intercourse Act</a>, which confirmed federal government power over almost all aspects of Indian affairs. Criminal jurisdiction in Indian Country has been considered <a href="https://www.indianz.com/News/2022/06/30/matthew-fletcher-u-s-supreme-court-disrupts-criminal-justice-in-indian-country/">federal and tribal</a> ever since, with only one limited exception, for crimes committed by non-Indians against non-Indians. </p>
<p>In 1832, the Supreme Court interpreted the U.S. Constitution as giving Indian affairs jurisdiction <a href="https://supreme.justia.com/cases/federal/us/31/515/">exclusively to the federal government</a> and confirmed that state law had no force in Indian Country without specific congressional authorization.</p>
<p>The majority in <a href="https://www.law.cornell.edu/supremecourt/text/21-429">Castro-Huerta</a> departs from this <a href="https://www.hcn.org/articles/indigenous-affairs-justice-law-the-supreme-courts-attack-on-tribal-sovereignty-explained">long-established premise</a>, concluding that state jurisdiction should be presumed absent congressional action to preempt it. The court then rejected Castro-Huerta’s claim that Oklahoma did not have jurisdiction over non-Indians committing crimes against Indians in Indian Country.</p>
<p>The dissent presented a very different view. <a href="https://www.law.cornell.edu/supremecourt/text/21-429">Justice Neil Gorsuch</a> wrote that the U.S. Constitution, Congress and the court’s own previous precedents treat tribes as separate sovereign governments. He focused on Congress, which has authorized only a few states – not including Oklahoma – to exercise criminal jurisdiction in Indian Country. Gorsuch concluded by calling on Congress to correct the outcome of the decision and restore the presumption that states do not have authority in Indian Country absent express congressional authorization.</p>
<h2>Congress’ support of sovereignty</h2>
<p>Castro-Huerta is the most recent example of a growing divide between the Supreme Court and Congress over federal Indian law. </p>
<p>As <a href="https://digitalcommons.wayne.edu/cgi/viewcontent.cgi?article=1390&context=lawfrp">my research shows</a>, Congress has actively remade federal Indian law over the past 50 years. Members of Congress introduced almost 8,000 bills related to Indian affairs from 1975 to 2012. Congress <a href="https://digitalcommons.wayne.edu/cgi/viewcontent.cgi?article=1390&context=lawfrp">enacted almost 13% of them</a> – double the percentage of bills enacted by Congress generally. </p>
<p>Congress has supported tribal sovereignty through legislation that has promoted tribal legal systems, ensured tribes operate effective child welfare systems, treated tribes like states for tax and environmental purposes, entered into compacts with tribal governments to provide federal services to their communities, and restored tribal criminal jurisdiction over specific crimes committed by non-Indians in Indian Country. At the same time, it has refused to grant states authority in Indian Country absent tribal consent.</p>
<p>The Supreme Court has repeatedly limited tribal sovereignty, often when confronted with conflicting state claims of authority. It has not deferred to Congress as the Constitution requires but has <a href="https://www.hcn.org/articles/indigenous-affairs-justice-law-the-supreme-courts-attack-on-tribal-sovereignty-explained">usurped lawmaking power for itself</a>. The result has been confusion within federal Indian law and on the ground in Indian Country.</p>
<p>Nowhere has this divide between the court and Congress’ visions of federal Indian law been more evident than in the criminal law context. Congress has <a href="https://digitalcommons.law.byu.edu/lawreview/vol2018/iss6/4/">repeatedly limited Supreme Court decisions</a> that interfere with its framework for criminal jurisdiction in Indian Country. In doing so, it has promoted tribal jurisdiction, not state jurisdiction, over alleged criminals in Indian Country. </p>
<p>As the primary lawmaker in the United States, Congress can enact laws to reverse or change certain Supreme Court decisions. In 1991, Congress overturned the court’s decision in <a href="https://supreme.justia.com/cases/federal/us/495/676/">Duro v. Reina</a> and recognized that tribal governments have criminal jurisdiction over non-member Indians. More recently, in 2013 and 2022, Congress started to reverse the court’s decision in <a href="https://supreme.justia.com/cases/federal/us/435/191/">Oliphant v. Suquamish Tribe</a> by restoring <a href="https://www.law.cornell.edu/uscode/text/25/1304">tribal authority</a> over nine crimes committed by non-Indians in Indian Country.</p>
<p>Castro-Huerta arose from a dispute between a state government and the federal and tribal governments but it reflects a larger conflict between Congress and the Supreme Court over federal Indian law. It is unlikely that the decision will resolve either. It may be time for <a href="https://www.indianz.com/News/2022/06/29/a-direct-assault-on-tribal-sovereignty-lawmaker-calls-for-action-to-address-u-s-supreme-court-ruling/">Congress, as Gorsuch urges, to step back in</a>. But even that may not end the conflict.</p><img src="https://counter.theconversation.com/content/186264/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kirsten Matoy Carlson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>For the past 50 years, the Supreme Court has issued rulings that narrow tribal rights while Congress has worked to expand them. A recent ruling struck yet another blow against Native sovereignty.Kirsten Matoy Carlson, Professor of Law and Adjunct Professor of Political Science, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1859412022-06-30T12:22:14Z2022-06-30T12:22:14ZThe Supreme Court has overturned precedent dozens of times, including striking down legal segregation and reversing Roe<figure><img src="https://images.theconversation.com/files/471441/original/file-20220628-25-syjzvz.jpg?ixlib=rb-1.1.0&rect=44%2C8%2C5946%2C3979&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A demonstrator outside the Supreme Court building expresses fear that other precedents will fall, too.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtAbortion/8841875201f44dab855d8af3c9b24b5d/photo">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p>It is a central principle of law: Courts, including the Supreme Court, are supposed to follow earlier decisions – precedent – to resolve current disputes. But on rare occasions, Supreme Court justices conclude that one of the court’s past constitutional precedents has to go, so they overrule it. This is exactly what happened in <a href="https://www.law.cornell.edu/supremecourt/text/19-1392">Dobbs v. Jackson Women’s Health Organization</a>, when the court overturned <a href="https://www.law.cornell.edu/supremecourt/text/410/113">Roe v. Wade</a>, the 1973 ruling recognizing a constitutional right to abortion. </p>
<p>For years the court had been building up a <a href="https://www.e-elgar.com/shop/usd/constitutional-precedent-in-us-supreme-court-reasoning-9781839103124.html">theory of precedent reversal</a> that would justify overturning Roe, among other precedents it did not like, and the <a href="https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504">draft opinion</a> leaked in early 2022 foreshadowed this decision.</p>
<p>The justices who voted to overrule the Roe precedent provided the reasoning behind their decision to reverse a longstanding ruling and declare abortion rights are not protected by the U.S. Constitution. Their explanations also open up the possibility of more reversals of precedent in the future.</p>
<h2>Why precedent?</h2>
<p>Over the centuries, courts have stated many reasons they should adhere to precedent. First is the idea of equity or justice, under which “<a href="https://scholar.princeton.edu/sites/default/files/benjohnson/files/like_cases.pdf">like cases should be decided alike</a>.” If a court in the past reviewed a particular set of facts and decided a case in a specific way, fairness dictates it should decide another similar case the same way. Adhering to precedent <a href="http://www.nonpublication.com/schauer.htm">promotes uniformity and consistency</a> in the law.</p>
<p>In addition, precedent promotes judicial efficiency: Courts do not have to decide from scratch every time. They can look at similar cases from the past and base their reasoning on those decisions.</p>
<p>Finally, following precedent promotes predictability in the law and <a href="https://scholarlycommons.law.wlu.edu/wlulr/vol47/iss2/2/">protects people who have come to rely on past decisions as a guide for their behavior</a>. </p>
<h2>Reversing precedent is unusual</h2>
<p>The Supreme Court rarely overturns its past decisions or precedents. </p>
<p>In my book, “<a href="https://www.e-elgar.com/shop/usd/constitutional-precedent-in-us-supreme-court-reasoning-9781839103124.html">Constitutional Precedent in Supreme Court Reasoning</a>,” I point out that from 1789 to 2020, there were 25,544 Supreme Court opinions and judgments after oral arguments. The court has reversed its own constitutional precedents only 145 times – barely 0.5%.</p>
<p>The court’s historic periods are often characterized by who led it as chief justice. From 1953 until 2020, under the successive leadership of Chief Justices Earl Warren, Warren Burger, William Rehnquist and now John Roberts, the court overturned constitutional precedent 32, 32, 30 and 15 times, respectively. That is well under 1% of decisions handled during each period in the court’s history.</p>
<h2>When is precedent overturned?</h2>
<p>For most of its history, the court changed its mind only when it thought past precedent was unworkable or no longer viable, perhaps eroded by its subsequent opinions or by changing social conditions. In some cases, reversal happened when the court simply thought it got it wrong in the past.</p>
<p>Not all precedents are equal, and several current Supreme Court justices have in the past been open to overturning even long-standing rulings that interpret the Constitution.</p>
<p>Beginning with the Rehnquist court, justices became more willing to reject precedents they thought were badly reasoned, simply wrong or inconsistent with their own sense of the constitutional framers’ intentions. Justice <a href="https://www.law.cornell.edu/supremecourt/text/18-1323">Clarence Thomas</a> has taken this position on abortion. Justice Amy Coney Barrett, during her <a href="https://www.washingtonpost.com/podcasts/daily-202-big-idea/supreme-court-nominee-does-not-consider-roe-v-wade-a-super-precedent/">Senate confirmation hearing</a>, argued that Roe is not a so-called superprecedent, a decision so important or foundational that it cannot be overturned. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman speaks into a microphone" src="https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The newest Supreme Court justice, Amy Coney Barrett, signaled even before her confirmation that she was open to overturning Roe.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/McConnellCenter/cad821c05f154524a8e698ce26178bfa/photo">AP Photo/Timothy D. Easley</a></span>
</figcaption>
</figure>
<p>Roberts has been willing to overturn settled law when he thinks the original opinion was not well argued. He did so in <a href="https://www.law.cornell.edu/supct/html/08-205.ZC.html">Citizens United</a>, a 2010 decision overturning two major campaign finance decisions, <a href="https://www.law.cornell.edu/supremecourt/text/494/652">Austin v. Michigan Chamber of Commerce</a> from 1989 and part of the 2003 <a href="https://www.law.cornell.edu/supct/html/02-1674.ZS.html">McConnell v. FEC</a> decision.</p>
<p>In 2020, Justices Neil Gorsuch and Brett Kavanaugh in <a href="https://www.law.cornell.edu/supremecourt/text/18-5924">Ramos v. Louisiana</a> went out of their way to explain and justify their views on when constitutional precedent may be overturned. They echoed Justice Samuel Alito’s discussion in 2018 in <a href="https://www.law.cornell.edu/supct/cert/16-1466">Janus v. American Federation of State, County, and Municipal Employees Council Number 31</a>. All three justices said constitutional precedent is merely a matter of court policy or discretion, more easily overturned than a precedent about a law. Sometimes, they said, constitutional precedents can be overruled if later judges view them as wrongly decided or reasoned.</p>
<p>All of these comments foreshadowed the Dobbs opinion.</p>
<h2>Reversing Roe v. Wade</h2>
<p>Roe v. Wade was an important precedent. In 1973, the Supreme Court ruled that women have a right to terminate their pregnancies. That right was reaffirmed in 1991 in <a href="https://www.law.cornell.edu/supremecourt/text/505/833">Planned Parenthood v. Casey</a>, with Justices Sandra Day O’Connor, Anthony Kennedy and David Souter noting that an entire generation of women came of age relying upon their right to control their bodies and terminate pregnancies in most circumstances. The justices said it would be wrong to upset that expectation, declaring “<a href="https://www.law.cornell.edu/supremecourt/text/505/833">An entire generation has come of age</a> free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions.”</p>
<p>In the Dobbs decision, Alito, who wrote the majority opinion, said “<a href="https://www.law.cornell.edu/supremecourt/text/19-1392#writing-19-1392_OPINION_4">Roe and Casey must be overruled</a>.” His justification was that abortion rights are not mentioned in the Constitution, and protection of abortion rights is not “deeply rooted in this Nation’s history and tradition.” He also said Roe was not essential to the United States’ “scheme of ordered liberty” – or <a href="https://dictionary.findlaw.com/definition/ordered-liberty.html">sense of personal freedom</a>.</p>
<p>Alito also argued that Roe was “was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.” </p>
<p>For Alito and the justices who joined his opinion – Thomas, Gorsuch, Kavanaugh and Barrett – the weakness and wrongness of the Roe decision simply outweighed the importance of the fact that women had relied on it for decades when making important personal decisions.</p>
<p>Kavanaugh wrote a concurring opinion that argued for reversing Roe for additional reasons. He wrote that the Constitution is silent on abortion – and therefore <a href="https://www.law.cornell.edu/supremecourt/text/19-1392#writing-19-1392_CONCUR_6">neutral on its constitutionality or unconstitutionality</a> – so the court should be silent also. He declared that Roe was “egregiously wrong” and said it “has caused significant negative jurisprudential or real-world consequences.”</p>
<p>Finally, and perhaps most dramatically, Thomas’ concurrence declared that not only was Roe wrong, but the entire idea of the court recognizing the existence of <a href="https://www.law.cornell.edu/supremecourt/text/19-1392#writing-19-1392_CONCUR_5">constitutional rights not explicitly found in the text</a> of the Constitution was flawed, an inappropriate expansion of rights that is known as <a href="https://www.law.cornell.edu/wex/substantive_due_process">substantive due process</a>. </p>
<p>Thomas called for the court to reconsider the 1964 decision on the right of any couple to <a href="https://www.oyez.org/cases/1964/496">use birth control</a>, the 2002 decision on the right of same-sex couples to <a href="https://www.oyez.org/cases/2002/02-102">engage in private consensual sexual acts</a> and the 2014 decision on the <a href="https://www.oyez.org/cases/2014/14-556">right of same-sex couples to marry</a>. All of these are presumably settled precedents. However, given Dobbs and the reasoning the various justices in the majority have offered, they too, along with others, could be candidates for reversal. </p>
<p><em>This is an updated version of an <a href="https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-in-the-past-60-years-including-when-it-struck-down-legal-segregation-168052">article originally published</a> Sept. 20, 2021.</em></p><img src="https://counter.theconversation.com/content/185941/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Schultz does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The justices who decided to overturn the abortion rights precedent of Roe v. Wade explained their reasoning, and signaled other precedents could be reversed as well.David Schultz, Professor of Law, University of Minnesota; Professor of Political Science, Hamline University Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1825822022-05-10T19:16:23Z2022-05-10T19:16:23Z5 justices, all confirmed by senators representing a minority of voters, appear willing to overturn Roe v. Wade<figure><img src="https://images.theconversation.com/files/462296/original/file-20220510-10405-u8mp23.jpeg?ixlib=rb-1.1.0&rect=8%2C35%2C5982%2C3952&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An unscalable fence around the U.S. Supreme Court, on May 7, 2022, set up in response to protests against the possible overruling of Roe v. Wade.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-un-scalable-fence-stands-around-the-us-supreme-court-in-news-photo/1240520345?adppopup=true"> Jose Luis Magana / AFP/Getty Images</a></span></figcaption></figure><p>If the leaked Supreme Court decision on abortion is to be believed, five justices have <a href="https://www.washingtonpost.com/politics/2022/05/07/supreme-court-abortion-roe-roberts-alito/">voted during private deliberations</a> to overturn Roe v. Wade. Notably, those five are what I refer to as <a href="http://studentorgs.kentlaw.iit.edu/cklawreview/">“numerical minority justices</a>.”</p>
<p>They are the only five in American history to qualify for that designation. And three of them were appointed by a minority president. Since Donald Trump <a href="http://www.politifact.com/wisconsin/statements/2016/nov/21/reince-priebus/despite-losing-popular-vote-donald-trump-won-elect/">lost the popular vote</a> in the 2016 election, he was, by definition, a minority president, elected by a minority of the voters. </p>
<p>Similarly, I define a “numerical minority justice” as a nominee who won confirmation with the support of a majority of senators, but senators who did not represent a majority of voters.</p>
<p>That raises a question that goes to the heart of the Supreme Court’s legitimacy in our democracy: Will this be a court out of line with America? </p>
<p>If so, what might that mean for the country’s politics and law? Indeed, for the nation itself? </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/462303/original/file-20220510-12-m7kw7g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman in a hooded jacket using a bullhorn to speak to several other people across the street from her who are holding signs." src="https://images.theconversation.com/files/462303/original/file-20220510-12-m7kw7g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/462303/original/file-20220510-12-m7kw7g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/462303/original/file-20220510-12-m7kw7g.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/462303/original/file-20220510-12-m7kw7g.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/462303/original/file-20220510-12-m7kw7g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/462303/original/file-20220510-12-m7kw7g.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/462303/original/file-20220510-12-m7kw7g.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Pro-abortion protester Trish Manzke chants into a bullhorn in the direction of anti-abortion protesters outside of the U.S. Supreme Court, May 7, 2022, in Washington, D.C.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtAbortion/eeea69c447d94234834b98c07f10d268/photo?hpSectionId=dfd51bbd91864f3abf518d2287463b7b&st=hpsection&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1193&currentItemNo=133">AP Photo/Amanda Andrade-Rhoades</a></span>
</figcaption>
</figure>
<h2>Court out of step with America?</h2>
<p>Consider Justice Brett Kavanaugh, one of the five justices whose name is on the leaked draft opinion overturning Roe. </p>
<p>During his confirmation, Kavanaugh was supported by a majority of the 98 senators voting on the nomination – <a href="https://www.senate.gov/legislative/LIS/roll_call_votes/vote1152/vote_115_2_00223.htm">49 Republicans and one Democrat</a>. But the votes earned by those 50 senators in their most recent elections added up to a total of only <a href="https://uselectionatlas.org/">54,102,052</a>.</p>
<p>The 48 senators who opposed Kavanaugh’s confirmation, all Democrats, garnered <a href="https://uselectionatlas.org/">78,623,957</a> total votes in their most recent elections – 24.5 million more votes from people supporting those senators.</p>
<p>Compare those figures with the support for one justice who has apparently not joined with those planning to overturn Roe, Elena Kagan. The <a href="https://www.senate.gov/legislative/LIS/roll_call_votes/vote1112/vote_111_2_00229.htm">Senate confirmed Kagan to a seat on the court by a vote of 63-37</a>. The 63 senators supporting her nomination had collected nearly twice as many votes in their most recent elections as the 37 senators in opposition.</p>
<h2>Seldom far from the mainstream</h2>
<p>To be sure, the framers of the Constitution purposely decided to provide <a href="https://www.senate.gov/artandhistory/history/common/briefing/Constitution_Senate.htm#1">each state with two senators</a>, knowing that those senators from states with smaller populations would represent fewer – at times far fewer – citizens than those with larger ones. Today, for example, California’s population is close to 40 million while Wyoming’s is less than 600,000. Yet both states have two senators.</p>
<p>This arrangement was a central aspect of the <a href="https://www.senate.gov/artandhistory/history/minute/A_Great_Compromise.htm">Great Compromise</a>, which helped convince representatives from sparsely populated states — fearful of being ignored by an alliance of the heavily populated states — to back the new Constitution.</p>
<p>Nevertheless, since the popular vote began to matter in the election of 1824, a minority president had never succeeded in appointing a minority justice. Indeed, until this century, even for presidents who won the popular vote by a large margin, significant Senate resistance more often than not <a href="https://www.loc.gov/law/find/court-withdrawn.php">doomed a nominee to the court</a>. </p>
<p>This might help to explain why political scientist <a href="https://books.google.com/books?id=UJXQ4N5oZZQC&pg=PA261&lpg=PA261&dq=lagged+far+behind+nor+forged+far+ahead+of+America&source=bl&ots=2uVXAZCTA4&sig=D2j32feRdEHfxTopMAQA7fvvm-8&hl=en&sa=X&ved=0ahUKEwik05OHmYjcAhWlpFkKHSIfAbIQ6AEIODAB#v=onepage&q=lagged%20far%20behind%20nor%20forged%20far%20ahead%20of%20America&f=false">Robert McCloskey concluded</a> in 1960 that the court had rarely “lagged far behind nor forged far ahead of America” and that the justices had “seldom strayed very far from the mainstreams of American life.” </p>
<h2>Might politics and the courts collide?</h2>
<p>Things are different today. We live in a period of <a href="http://www.people-press.org/interactives/political-polarization-1994-2017/">deep political polarization</a>. This shift in American politics raises some important questions about the Supreme Court’s legitimacy in our democracy. </p>
<p>In the past, political majorities at the polls have supported significant doctrinal shifts by the court, even if the specific rulings have been controversial. </p>
<p>In other words, as McCloskey and fellow political scientist Robert Dahl observed, since one party typically dominated during an extended period of time, the justices – because they were products of that enduring regime – generally advanced the regime’s interests in the long term. To put it simply, for much of American history, the court followed the <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/emlj6&div=20&id=&page=">election returns</a>.</p>
<p>For example, the 1905 decision of <a href="https://www.oyez.org/cases/1900-1940/198us45">Lochner v. New York</a>, which struck down state legislation designed to protect workers via the court’s <a href="https://constitutioncenter.org/blog/lochner-v-new-york-fundamental-rights-and-economic-liberty">freedom of contract doctrine</a>, was a product of the Republican regime that dominated American politics at the time. </p>
<p>Similarly, the <a href="https://www.history.com/topics/new-deal">New Deal Democratic regime</a> ushered in by the landslide election of Franklin D. Roosevelt in 1932 ultimately provided the political basis for another divisive decision, <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown v. Board of Education</a>, which found that supposedly “separate-but-equal” segregated schools <a href="http://press.uchicago.edu/ucp/books/book/chicago/R/bo3613113.html">were unconstitutional</a>. </p>
<p>Today, no such majority exists.</p>
<p>The popular vote for president and the Electoral College results have twice in the last six presidential elections <a href="http://www.latimes.com/nation/la-na-pol-electoral-college-20161110-story.html">been out of alignment</a>. And the Democratic presidential nominee has <a href="https://ropercenter.cornell.edu/polls/us-elections/popular-vote/">won the popular vote</a> in seven of the last eight presidential elections, from 1992 to 2020, yet Republican presidents have <a href="https://www.supremecourt.gov/about/biographies.aspx">appointed six</a> of the nine sitting justices. </p>
<p>Given this recent divide between the popular vote and the electoral vote, it seems reasonable to consider the possibility of the alternative to McCloskey’s conclusions – of a court that consistently diverges from American majorities on the most pressing issues of the day.</p>
<p>After all, Supreme Court justices <a href="http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about">have lifetime appointments</a> and typically stay on the bench for many years, even decades. Their imprint on the law can be enduring and their legitimacy, conferred in part by the confirmation process, helps ensure their place in our democracy. </p>
<h2>Roe’s pending end</h2>
<p>With the addition of the Trump justices, many court observers suspected <a href="https://supreme.justia.com/cases/federal/us/410/113/case.html">the 1973 Roe ruling</a>, which affirmed a woman’s right to terminate an unwanted pregnancy, would become a prime target of the newly-established conservative majority. </p>
<p>While Roe has been a deeply divisive decision since the day it was announced, the Republican in the White House at the time — Richard Nixon — <a href="https://www.nytimes.com/2009/06/24/us/politics/24nixon.html">neither publicly denounced it</a> nor <a href="http://press.uchicago.edu/ucp/books/book/chicago/N/bo12079563.html">sought to overturn it</a>. And three of his four appointees to the court <a href="http://landmarkcases.org/en/Page/661/Summary_of_the_Decision">joined the 7-2 majority</a>, including the opinion’s <a href="http://prospect.org/article/conservative-liberal">author Justice Harry Blackmun</a>. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/226557/original/file-20180706-122271-vbzdq0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/226557/original/file-20180706-122271-vbzdq0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=392&fit=crop&dpr=1 600w, https://images.theconversation.com/files/226557/original/file-20180706-122271-vbzdq0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=392&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/226557/original/file-20180706-122271-vbzdq0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=392&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/226557/original/file-20180706-122271-vbzdq0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=492&fit=crop&dpr=1 754w, https://images.theconversation.com/files/226557/original/file-20180706-122271-vbzdq0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=492&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/226557/original/file-20180706-122271-vbzdq0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=492&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">President Nixon, flanked by outgoing Chief Justice Earl Warren, left, and incoming Chief Justice Warren Burger, right.</span>
<span class="attribution"><span class="source">AP Photo</span></span>
</figcaption>
</figure>
<p>Of course, Nixon’s Republican successor, Ronald Reagan, oversaw a Justice Department that repeatedly asked the court to reverse itself on <a href="https://www.emeraldinsight.com/doi/abs/10.1108/S1059-433720160000070009">Roe</a>. But ultimately a majority of the justices refused to go along, including two of Reagan’s three additions to the court, Sandra Day O'Connor and Anthony Kennedy.</p>
<p>Today, polls show significant opposition to overturning the decision. </p>
<p>For example, according to <a href="https://www.cbsnews.com/news/roe-v-wade-supreme-court-overturn-opinion-poll-2022-05-08/">a post-leak CBS News poll</a>, 64% of Americans want the court to keep Roe “as is.” A Washington Post-ABC News poll supports this conclusion, finding 54% of respondents did not think the court should overturn Roe, while 28% <a href="https://www.washingtonpost.com/politics/2022/05/03/most-americans-say-supreme-court-should-uphold-roe-post-abc-poll-finds/">thought it should</a>.</p>
<p>It would be best if a court making a determination on the future of Roe could do so with the utmost democratic legitimacy. But given the state of U.S. politics today, that is a near impossibility. </p>
<p><a href="https://news.gallup.com/poll/354908/approval-supreme-court-down-new-low.aspx">In September 2021, Gallup reported</a> that the court’s approval rating had fallen from 58% support a little more than a year earlier to a new low of 40%. Perhaps more strikingly, another poll <a href="https://www.pewresearch.org/politics/2022/02/02/publics-views-of-supreme-court-turned-more-negative-before-news-of-breyers-retirement/">showed an increasing partisan divide in views of the court</a>, with 65% of Republicans approving of its work and just 46% of Democrats doing so.</p>
<p>A five-justice conservative majority that discards Roe after nearly 50 years on the books will likely further the belief that the court reaches its rulings based mainly on politics rather than law, especially given the central role opponents of the decision have played in mobilizing voters to support Republican candidates like Donald Trump. </p>
<p><a href="https://internet3.trincoll.edu/facProfiles/Default.aspx?fid=1261609">As a political scientist</a> who has studied and written about the Supreme Court for more than 25 years, I believe this result will likely further erode of the court’s legitimacy, and deepen the partisan divide in America.</p>
<p><em>This is an updated version of an article <a href="https://theconversation.com/is-the-supreme-courts-legitimacy-undermined-in-a-polarized-age-99473">originally published on July 7, 2018</a>.</em></p><img src="https://counter.theconversation.com/content/182582/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kevin J. McMahon does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If the Supreme Court overturns Roe v. Wade, will it be out of step with America?Kevin J. McMahon, Professor of Political Science & Director of the Graduate Program in Public Policy, Trinity CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1680522021-09-20T12:30:28Z2021-09-20T12:30:28ZThe Supreme Court has overturned precedent dozens of times in the past 60 years, including when it struck down legal segregation<figure><img src="https://images.theconversation.com/files/421689/original/file-20210916-23-1ds4ezt.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C7165%2C4719&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">How much importance does the Supreme Court place on prior decisions?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-u-s-supreme-court-is-seen-on-september-02-2021-in-news-photo/1337858328">Kevin Dietsch/Getty Images</a></span></figcaption></figure><p>It is a central principle of law: Courts are supposed to follow earlier decisions – precedent – to resolve current disputes. But it’s inevitable that sometimes, the precedent has to go, and a court has to overrule another court, or even its own decision from an earlier case.</p>
<p>In its upcoming term, the U.S. Supreme Court faces the question of whether to overrule itself on abortion rights. Recent laws in <a href="https://www.washingtonpost.com/nation/2021/05/19/texas-abortion-law-abbott/">Texas</a> and <a href="https://www.washingtonpost.com/politics/courts_law/supreme-court-abortion-roe-v-wade/2021/05/17/cdaf1dd6-b708-11eb-a6b1-81296da0339b_story.html">Mississippi</a> restrict the right of women to terminate pregnancies in ways that appear to challenge the long-standing precedent of the Supreme Court’s 1973 decision in <a href="https://www.law.cornell.edu/supremecourt/text/410/113">Roe v. Wade</a>, which allowed women to have abortions in most circumstances.</p>
<p>Over the centuries, courts have stated many reasons they should adhere to precedent. First is the idea of equity or justice, under which “<a href="https://cgc.law.stanford.edu/commentaries/15-john-walker/#:%7E:text=I.-,How%20Does%20a%20Case%20Become%20a%20Binding%20Precedent%3F,cases%20should%20be%20decided%20alike.&text=First%2C%20as%20compared%20with%20the,as%20applied%20to%20similar%20facts.">like cases should be decided alike</a>,” as one senior federal judge put it. If a court in the past reviewed a particular set of facts and decided a case in a specific way, fairness dictates it should decide another similar case the same way. Precedent <a href="http://www.nonpublication.com/schauer.htm">promotes uniformity and consistency</a> in the law.</p>
<p>In addition, precedent promotes judicial efficiency: Courts do not have to decide from scratch every time. Finally, following precedent promotes predictability in the law and <a href="https://scholarlycommons.law.wlu.edu/wlulr/vol47/iss2/2/">protects people who have come to rely on past decisions as a guide for their behavior</a>. </p>
<p>But not all precedents are equal, and several current Supreme Court justices have signaled that they might be open to overturning even long-standing rulings that interpret the Constitution.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/421690/original/file-20210916-23-1jg8wh1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of people holding signs in front of the Supreme Court building" src="https://images.theconversation.com/files/421690/original/file-20210916-23-1jg8wh1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/421690/original/file-20210916-23-1jg8wh1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/421690/original/file-20210916-23-1jg8wh1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/421690/original/file-20210916-23-1jg8wh1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/421690/original/file-20210916-23-1jg8wh1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/421690/original/file-20210916-23-1jg8wh1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/421690/original/file-20210916-23-1jg8wh1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Abortion opponents are hoping the Supreme Court will overturn its 1973 decision in Roe v. Wade, which allows women to have abortions in many cases.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AbortionAidNetworks/4f5f3322844e477eb9e0ce0d618a3a01/photo">AP Photo/Patrick Semansky</a></span>
</figcaption>
</figure>
<h2>Reversing precedent is unusual</h2>
<p>The Supreme Court rarely overturns its past decisions or precedents. </p>
<p>In my forthcoming book, “Constitutional Precedent in Supreme Court Reasoning,” I point out that from 1789 to 2020 there were 25,544 Supreme Court opinions and judgments after oral arguments. The court has reversed its own constitutional precedents only 145 times – barely one-half of one percent.</p>
<p>The court’s historic periods are often characterized by who led it as chief justice. It was not until the 1930s under Chief Justice Charles Evans Hughes that it started to overturn precedents with any frequency. These were cases such as <a href="https://www.law.cornell.edu/supremecourt/text/312/657/USSC_PRO_312_100_82">United States v. Darby</a>, in which the court began to affirm President Franklin Roosevelt’s New Deal economic policies after previously rejecting them as unconstitutional.</p>
<p>Before then, of course, many cases asked the court to interpret clauses of the Constitution for the first time, so there were often no precedents to confront or overturn.</p>
<p>Under Chief Justices Earl Warren, Warren Burger, William Rehnquist and now John Roberts, the court overturned constitutional precedent 32, 32, 30 and 15 times, respectively. That is well under 1% of decisions handled during each period in the court’s history.</p>
<h2>When is precedent overturned?</h2>
<p>For most of its history the court changed its mind only when it thought past precedent was unworkable or no longer viable, perhaps eroded by its subsequent opinions or by changing social conditions. </p>
<p>This happened in <a href="https://www.law.cornell.edu/supremecourt/text/304/64">Erie Railroad v. Tompkins</a>, a 1938 Supreme Court case overturning a <a href="https://www.law.cornell.edu/supremecourt/text/41/1">96-year-old precedent</a> in which the court had constructed rules about how federal courts should handle cases involving parties from different states. The court in Erie said that the original decision proved to be unworkable and had been undermined by the court’s own later decisions.</p>
<p>The court has also said that its precedents based on <a href="https://www.law.cornell.edu/supct/html/90-5721.ZO.html">constitutional grounds</a> deserve less respect than those in which the court interprets statutes or laws. The reason is that if Congress thinks the court has erred in a matter of interpreting a statute or law, it is relatively easy for them to overturn it by passing a new law. But it’s quite hard to pass a constitutional amendment, so the only real way to update the judicial understanding of the Constitution is to overrule a precedent.</p>
<p>Of course the most famous reversal of precedent is the 1954 <a href="https://www.law.cornell.edu/wex/brown_v_board_of_education_(1954)">Brown v. Board of Education</a> under the Warren Court, in which it reversed <a href="https://www.law.cornell.edu/supremecourt/text/163/537">Plessy v. Ferguson</a> and struck down segregation under the “separate but equal” doctrine.</p>
<p>Roe v. Wade is an important precedent. In 1973 the Supreme Court ruled that women have a right to terminate their pregnancies. That right was reaffirmed in 1991 in <a href="https://www.law.cornell.edu/supremecourt/text/505/833">Planned Parenthood v. Casey</a>, with Justices Sandra Day O’Connor, Anthony Kennedy and David Souter noting that an entire generation of women came of age relying upon their right to control their bodies and terminate pregnancies in most circumstances. The justices said it would be wrong to upset that expectation.</p>
<p><a href="https://www.amazon.com/Rights-Turn-Conservative-Christian-Politics/dp/1108405606/ref=sr_1_4?dchild=1&keywords=abortion+politics&qid=1631829608&s=books&sr=1-4">Roe has also spurred opposition</a>, with many wanting to overturn it. For years, presidents including Ronald Reagan, George H.W. Bush, George W. Bush and Donald Trump sought to appoint justices to the Supreme Court with <a href="https://www.washingtonpost.com/politics/2017/live-updates/trump-white-house/neil-gorsuch-confirmation-hearings-updates-and-analysis-on-the-supreme-court-nominee/trump-promised-judges-who-would-overturn-roe-v-wade/">the goal of overturning Roe</a> and, with it, abortion rights. Now with a <a href="https://theconversation.com/3-ways-a-6-3-supreme-court-would-be-different-146558">6-3 conservative majority</a>, the court may be poised to do that.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman speaks into a microphone" src="https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/421691/original/file-20210916-21-1263pl2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The newest Supreme Court justice, Amy Coney Barrett, has signaled she might be open to overturning Roe.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/McConnellCenter/cad821c05f154524a8e698ce26178bfa/photo">AP Photo/Timothy D. Easley</a></span>
</figcaption>
</figure>
<h2>Justices get more comfortable reversing precedent</h2>
<p>Beginning with the Rehnquist court, justices have become more willing to reject precedents they think were badly reasoned, simply wrong, or inconsistent with their own senses of the constitutional framers’ intentions. Justice <a href="https://www.law.cornell.edu/supremecourt/text/18-1323">Clarence Thomas</a> has taken this position on abortion. Justice Amy Coney Barrett during her <a href="https://www.washingtonpost.com/podcasts/daily-202-big-idea/supreme-court-nominee-does-not-consider-roe-v-wade-a-super-precedent/">Senate confirmation hearing</a> argued that Roe is not a so-called superprecedent, a decision so important or foundational that it cannot be overturned. </p>
<p>[<em>The Conversation’s Politics + Society editors pick need-to-know stories.</em> <a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-need-to-know">Sign up for Politics Weekly</a>.]</p>
<p>Chief Justice Roberts has been willing to overturn settled law when he thinks the original opinion was not well argued. He did so in <a href="https://www.law.cornell.edu/supct/html/08-205.ZC.html">Citizens United</a>, a 2010 decision overturning two major campaign finance decisions, <a href="https://www.law.cornell.edu/supremecourt/text/494/652">Austin v. Michigan Chamber of Commerce</a> and part of <a href="https://www.law.cornell.edu/supct/html/02-1674.ZS.html">McConnell v. FEC</a>.</p>
<p>In 2020, Justices Neil Gorsuch and Brett Kavanaugh in <a href="https://www.law.cornell.edu/supremecourt/text/18-5924">Ramos v. Louisiana</a> went out of their way to explain and justify their views on when constitutional precedent may be overturned. They echoed Justice Samuel Alito’s discussion in 2018 in <a href="https://www.law.cornell.edu/supct/cert/16-1466">Janus v. American Federation of State, County, and Municipal Employees Council Number 31</a>. All three justices said constitutional precedent is merely a matter of court policy or discretion, more easily overturned than a precedent about a law. Sometimes, they said, constitutional precedents can be overruled if later judges view them as wrongly decided or reasoned.</p>
<p>Abortion foes have been preparing practically since Roe was decided to overturn it. They have set both the political conditions and legal justification to overturn Roe, and perhaps this year it will be the time when it finally happens.</p><img src="https://counter.theconversation.com/content/168052/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Schultz does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There is value in observing legal precedent, but sometimes circumstances, logic or judges’ views determine it’s time to overturn it.David Schultz, Professor of Law, University of Minnesota; Professor of Political Science, Hamline University Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1601422021-05-10T12:32:26Z2021-05-10T12:32:26ZStates pick judges very differently from US Supreme Court appointments<figure><img src="https://images.theconversation.com/files/399326/original/file-20210506-14-1hfx412.jpg?ixlib=rb-1.1.0&rect=35%2C0%2C4000%2C2658&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Political pressure is focusing on the makeup of the U.S. Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-u-s-supreme-court-stands-on-december-11-2020-in-news-photo/1230073841">Stefani Reynolds/Getty Images</a></span></figcaption></figure><p>The future of the U.S. Supreme Court is <a href="https://theconversation.com/supreme-court-losing-luster-in-publics-eyes-55802">politically fraught</a>. </p>
<p>The <a href="https://theconversation.com/3-ways-a-6-3-supreme-court-would-be-different-146558">court’s partisan balance</a> has <a href="https://theconversation.com/liberals-in-congress-and-the-white-house-have-faced-a-conservative-supreme-court-before-154782">long</a> been a <a href="https://theconversation.com/partisan-supreme-court-battles-are-as-old-as-the-united-states-itself-146657">hot-button issue</a>, and both Democrats and Republicans can correctly claim that the other party bears at least <a href="https://www.npr.org/2017/04/04/522598965/going-nuclear-how-we-got-here">some blame</a> for the <a href="https://theconversation.com/is-the-supreme-courts-legitimacy-undermined-in-a-polarized-age-99473">politicization of the federal judiciary</a>.</p>
<p>In 2016, appointments to the U.S. Supreme Court became even more overtly political when conservative Justice <a href="https://theconversation.com/former-clerk-on-justice-antonin-scalia-and-his-impact-on-the-supreme-court-55211">Antonin Scalia</a> died and the <a href="https://www.youtube.com/watch?v=YqRJXVXcVeE">U.S. Senate’s Republican majority refused</a> to let President Barack Obama <a href="https://theconversation.com/filling-the-supreme-court-vacancy-lessons-from-1968-55010">fill the vacancy</a>. </p>
<p>This delay ultimately gave soon-to-be President Donald Trump the chance to seat conservative <a href="https://theconversation.com/who-is-neil-gorsuch-72142">Neil Gorsuch</a> as Scalia’s replacement. Four years later, though, <a href="https://thehill.com/homenews/senate/527448-mcconnell-pushed-trump-to-nominate-coney-barrett-on-the-night-of-ginsburgs">Republicans rushed</a> to <a href="https://theconversation.com/can-trump-and-mcconnell-get-through-the-4-steps-to-seat-a-supreme-court-justice-in-just-6-weeks-146544">fill the vacancy</a> left by the death of liberal Justice <a href="https://theconversation.com/ginsburgs-legal-victories-for-women-led-to-landmark-anti-discrimination-rulings-for-the-lgbtq-community-too-146546">Ruth Bader Ginsburg</a> less than two months before a presidential election.</p>
<p>Now, with Democrats in control of the White House and – barely – the U.S. Senate, some within the party have been <a href="https://judiciary.house.gov/news/documentsingle.aspx?DocumentID=4508">calling for President Joe Biden to add more justices to the U.S. Supreme Court</a> in hopes of <a href="https://www.usatoday.com/story/opinion/2020/10/29/republicans-packed-supreme-court-expand-repair-damage-column/6054522002/">reversing</a> Republican <a href="https://theconversation.com/mitch-mcconnells-legacy-is-a-conservative-supreme-court-shaped-by-his-calculated-audacity-147062">efforts</a> to <a href="https://www.theguardian.com/us-news/2020/apr/28/donald-trump-judges-create-new-conservative-america-republicans">enshrine conservatism</a> within the courts.</p>
<p>In response to those calling for reform, Biden has created the <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/09/president-biden-to-sign-executive-order-creating-the-presidential-commission-on-the-supreme-court-of-the-united-states/">Presidential Commission on the Supreme Court of the United States</a>, whose mission “is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform.”</p>
<p>This commission – which includes <a href="https://news.bloomberglaw.com/us-law-week/bidens-supreme-court-commission-whos-on-it-and-why-explained">scholars, lawyers and political advisers</a> – could <a href="https://theconversation.com/supreme-court-polarization-is-not-inevitable-just-look-at-europe-99356">look at top courts overseas for ideas</a> about how to <a href="https://theconversation.com/unlike-us-europe-picks-top-judges-with-bipartisan-approval-to-create-ideologically-balanced-high-courts-146550">depoliticize</a> the U.S. Supreme Court. But its members could also learn lessons from the states, many of which have already taken steps to insulate their judicial branches from partisan politics.</p>
<p><iframe id="z290V" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/z290V/4/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>State court lessons for depoliticization</h2>
<p>Following the model set by the U.S. Constitution, <a href="https://www.lindenwood.edu/files/resources/stuteville.pdf">many state constitutions</a> initially called for governors to appoint state judges for life with the advice and consent of the state’s Senate. Over time, many felt that this system empowered governors to award judgeships based upon party loyalty <a href="https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3830&context=mlr">rather than judicial temperament and fair-mindedness</a>. </p>
<p>In the mid-1800s, <a href="https://www.history.com/news/andrew-jackson-populism">populism</a> swept the country. This movement toward giving power to the public prompted several states to amend their state constitutions to allow for the <a href="http://www.judicialselection.us/judicial_selection/reform_efforts/formal_changes_since_inception.cfm">popular election of judges</a>. </p>
<p>This did not solve the problem of judicial politicization, as <a href="http://judicialselection.us/uploads/documents/Berkson_1196091951709.pdf">judges were often beholden to the political machines that helped them get elected</a>. As such, the public began to perceive elected judges as both partisan and corrupt, and turned against the courts. For example, <a href="https://core.ac.uk/download/pdf/217044329.pdf">between 1918 to 1940</a> only two Missouri Supreme Court judges were reelected.</p>
<p>In <a href="http://judicialselection.us/judicial_selection/reform_efforts/formal_changes_since_inception.cfm?state=">1940</a>, Missouri became <a href="https://docs.lib.purdue.edu/cgi/viewcontent.cgi?article=2147&context=open_access_dissertations">the first state</a> to adopt what is now called the “<a href="https://www.britannica.com/topic/Missouri-Plan">Missouri Plan</a>” for selecting judges, which involves two elements: “assisted appointments” and nonpartisan “retention elections.” </p>
<p>Typically, for assisted appointments, a nonpartisan commission reviews candidates for state judgeships, creating a list of potential nominees <a href="http://www.judicialselection.us/uploads/documents/ms_descrip_1185462202120.pdf">based on merit</a>. The governor fills vacancies on the bench by choosing from this predetermined list. In such a system, <a href="http://www.judicialselection.us/uploads/Documents/Judicial_Merit_Charts_0FC20225EC6C2.pdf">the governor’s pick does not usually need to be confirmed by the state legislature</a> because the pick has already been vetted by the nonpartisan commission. </p>
<p>For retention elections, judges face no opponent and are listed on the ballot <a href="https://www.courts.mo.gov/page.jsp?id=297">without political party designation</a>. Voters are simply asked whether an incumbent judge should remain in office, which provides an opportunity to oust judges who regularly make unpopular decisions. Retention elections are often held in states that use assisted appointments. However, in some states that still elect their judges using partisan elections, such as <a href="https://ballotpedia.org/Judicial_selection_in_Illinois">Illinois</a>, nonpartisan retention elections are used when it’s time for reelection.</p>
<p>Today, <a href="https://ballotpedia.org/Assisted_appointment_(judicial_selection)">more than 30 states</a> use some form of assisted appointments. <a href="https://ballotpedia.org/Retention_election">More than 20 states</a> use some variation of retention elections. More than a dozen states use both in some capacity. Notably, both “red” states and “blue” states have adopted one or both of these reforms, as have many “purple” states.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men shake hands" src="https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=430&fit=crop&dpr=1 600w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=430&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=430&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=540&fit=crop&dpr=1 754w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=540&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=540&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Barack Obama’s nomination of Merrick Garland to the U.S. Supreme Court sparked a partisan fight.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ObamaSupremeCourt/7f2430eea2f8409cbe62880a1039cbe3/photo">AP Photo/Pablo Martinez Monsivais</a></span>
</figcaption>
</figure>
<h2>Showing the way forward?</h2>
<p><a href="https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3841&context=mlr">Advocates of Missouri’s nonpartisan court plan</a> argue that the reforms have been a <a href="https://www.courts.mo.gov/page.jsp?id=297">success</a>. According to <a href="https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3830&context=mlr">Sandra Day O'Connor</a>, <a href="https://www.britannica.com/biography/Sandra-Day-OConnor">the first woman to serve on the U.S. Supreme Court</a>, “the ‘Show-Me State’ … has shown the nation how we can do a better job of selecting our judges.”</p>
<p>If the federal government adopted assisted appointments, campaign tactics like Trump’s 2016 <a href="https://www.youtube.com/watch?v=wd06ZjhEEEk">promise to appoint pro-life, conservative judges</a> would be less <a href="https://www.washingtonpost.com/news/politics/wp/2018/06/26/a-quarter-of-republicans-voted-for-trump-to-get-supreme-court-picks-and-it-paid-off/">relevant</a>, because presidents would be limited in whom they could nominate for a court vacancy.</p>
<p>[<em>Over 100,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p>
<p>Additionally, if voters could remove U.S. Supreme Court justices whose opinions <a href="https://www.npr.org/2020/10/05/920416357/justices-thomas-alito-blast-supreme-court-decision-on-gay-marriage-rights">differ</a> from that of the <a href="https://www.nbcnews.com/feature/nbc-out/support-gay-marriage-reaches-all-time-high-survey-finds-n1244143">majority</a> of Americans, politicians might not feel as pressured to block the appointment of a <a href="https://theconversation.com/will-merrick-garland-joe-bidens-pick-for-attorney-general-be-independent-in-that-role-history-says-its-unlikely-151952">particular justice for partisan reasons</a>, as the judge would serve on the bench for only as long as they retained <a href="https://theconversation.com/are-you-suddenly-interested-in-the-supreme-court-youre-not-alone-99657">public support</a>.</p><img src="https://counter.theconversation.com/content/160142/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Holzer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many states have found ways to remove partisan politics from their court systems.Joshua Holzer, Assistant Professor of Political Science, Westminster CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1547822021-02-10T13:15:54Z2021-02-10T13:15:54ZLiberals in Congress and the White House have faced a conservative Supreme Court before<figure><img src="https://images.theconversation.com/files/383337/original/file-20210209-19-1pl7tt6.jpg?ixlib=rb-1.1.0&rect=4%2C8%2C2991%2C2115&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Members of the U.S. Supreme Court visit President Franklin D. Roosevelt at the White House in 1934.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtCallsOnFDR1934/87c2a2da5c274849955dcee8814253ae/photo">AP Photo</a></span></figcaption></figure><p>With control of the White House and both houses of Congress, Democrats are looking to make major changes in government initiatives – including on <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/27/fact-sheet-president-biden-takes-executive-actions-to-tackle-the-climate-crisis-at-home-and-abroad-create-jobs-and-restore-scientific-integrity-across-federal-government/">climate change</a>, <a href="https://foreignpolicy.com/2021/02/08/biden-immigration-refugee-policy-family-separation-latin-america/">immigration</a> and <a href="https://www.washingtonpost.com/education/miguel-cardona-confirmation-hearing/2021/02/03/21d65be8-665c-11eb-8468-21bc48f07fe5_story.html">education</a>. </p>
<p>But many of those ideas <a href="https://theconversation.com/why-disputes-between-congress-and-the-white-house-so-often-end-up-in-court-150333">may end up in court</a> – where they will face a Supreme Court <a href="https://theconversation.com/3-ways-a-6-3-supreme-court-would-be-different-146558">dominated by conservatives</a>.</p>
<p>Donald Trump’s appointments of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett make the Supreme Court <a href="https://edition.cnn.com/2020/09/26/politics/supreme-court-conservative/index.html">more conservative</a> than it has been at any time since the 1930s, when Franklin Delano Roosevelt was president. Many court watchers expect that the current court’s decisions will lean much further to the right than Congress, the president and public opinion do. </p>
<p>Fearing a clash between the branches, some have even suggested that President Joe Biden consider <a href="https://www.independent.co.uk/voices/biden-amy-coney-barrett-scotus-confirmation-election-trump-pack-the-courts-b1052731.html">adding justices to the court</a> – as Roosevelt considered but ultimately didn’t pursue – to prevent key legislation from being struck down.</p>
<p>As scholars of U.S. legal history know, the court is often less insulated from politics than many people assume. Roosevelt’s threat to pack the courts, and what happened next, illustrate the pressures the Supreme Court faces to limit how far it strays from the other branches and from public opinion. </p>
<h2>The Lochner era</h2>
<p>Most Americans today are not accustomed to a right-leaning Supreme Court. Instead, they have viewed the judicial branch as a reliable – or lamentable – champion of liberal values. That dates back to the 1950s and 1960s, when the court, led by Chief Justice Earl Warren, made a series of <a href="https://www.thoughtco.com/the-warren-court-4706521">landmark liberal rulings</a> generally expanding civil rights on issues from school desegregation to criminal defendants’ rights.</p>
<p>But the liberalism of the Warren court was itself a major shift. </p>
<p>From the late 19th century through to the 1930s, federal courts, including the Supreme Court, were generally considered to be the most conservative branch of the federal government, especially on economic issues. The courts championed limited government and broad freedom for corporations.</p>
<p>That period of pro-business jurisprudence came to be known among legal scholars as the “Lochner era,” named for the 1905 case of <a href="https://www.oyez.org/cases/1900-1940/198us45">Lochner v. New York</a>. </p>
<p>In that case, the Supreme Court struck down a New York law that, to protect employees, had regulated working conditions in bakeries. The majority of the justices held that the law violated bakeshop owners’ liberty to contract with their employees as they wished.</p>
<p>The court also continued to limit <a href="https://www.law.cornell.edu/wex/commerce_clause">Congress’ power to regulate interstate commerce</a> to a narrow range of economic activity that excluded most manufacturing and services.</p>
<h2>The New Deal and the court</h2>
<p>In 1933, Roosevelt came to power with a strong mandate to tackle the Great Depression. He quickly established several new government agencies, reformed financial regulations and sought to regulate business in unprecedented ways. </p>
<p>The <a href="https://www.britannica.com/topic/National-Industrial-Recovery-Act">National Industrial Recovery Act</a>, for instance, called for industrywide codes of fair competition that set minimum wages, prices, maximum working hours, production quotas and regulations for the process of selling goods. Although Congress saw the need for such a transformative piece of legislation, it was <a href="https://www.oyez.org/cases/1900-1940/295us495">challenged in the courts</a> by a poultry company that had been charged with violating a new code governing the poultry industry. Schechter Poultry’s violations included selling chickens on an individual basis and selling them to nonlicensed purchasers. The right-wing majority on the Supreme Court ruled in favor of Schechter and struck down key parts of the NIRA, drawing in part on its restrictive understanding of the commerce clause. </p>
<p>In this and other cases during Roosevelt’s first term, the Supreme Court demonstrated a growing divergence from the other branches and public opinion. The public had expressed its hunger for strong and far-reaching economic legislation by electing New Deal Democrats to Congress and the presidency. But unelected lifetime appointees on the court held onto a more conservative understanding of the scope of governmental power.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/383349/original/file-20210209-17-385f14.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Franklin D. Roosevelt addresses the nation in 1936" src="https://images.theconversation.com/files/383349/original/file-20210209-17-385f14.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/383349/original/file-20210209-17-385f14.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=550&fit=crop&dpr=1 600w, https://images.theconversation.com/files/383349/original/file-20210209-17-385f14.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=550&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/383349/original/file-20210209-17-385f14.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=550&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/383349/original/file-20210209-17-385f14.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=691&fit=crop&dpr=1 754w, https://images.theconversation.com/files/383349/original/file-20210209-17-385f14.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=691&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/383349/original/file-20210209-17-385f14.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=691&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Franklin D. Roosevelt, seen here defending the New Deal before Congress in 1936, won a landslide reelection that year.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/FDRDefendsNewDeal1936/661166dfb7564ee8ad46580011304988/photo">AP Photo</a></span>
</figcaption>
</figure>
<h2>A crucial shift</h2>
<p>When Roosevelt was reelected in a landslide in 1936, he proposed a bill to <a href="https://www.history.com/news/franklin-roosevelt-tried-packing-supreme-court">reform the federal judiciary</a> in an attempt to stop the Supreme Court’s obstruction of his policy initiatives.</p>
<p>This bill included what became known as his “<a href="https://www.history.com/this-day-in-history/roosevelt-announces-court-packing-plan">court-packing plan</a>,” which would have potentially allowed Roosevelt to appoint six more justices, tilting the majority in his favor. </p>
<p>The Constitution <a href="https://theconversation.com/packing-the-court-amid-national-crises-lincoln-and-his-republicans-remade-the-supreme-court-to-fit-their-agenda-147139">doesn’t prohibit expanding the court</a>, but even Roosevelt’s supporters were wary, so the eventual bill was passed without that provision. </p>
<p>As the bill was being debated in Congress, court-packing became less urgent to Roosevelt and his supporters because a change occurred within the Supreme Court itself. Nobody died, but someone switched sides. Associate Justice Owen Roberts had previously voted with the right-wing opponents to the New Deal, but in 1937 he <a href="https://www.oyez.org/cases/1900-1940/300us379">joined the more liberal justices</a> to uphold a minimum-wage law in the state of Washington.</p>
<p>From that point on, the court expanded its interpretation of the commerce clause to give Congress much broader powers to regulate the economy.</p>
<p><a href="https://www.newyorker.com/news/our-columnists/what-democrats-achieve-by-threatening-to-pack-the-supreme-court">Some commentators</a> claim that Justice Owen Roberts shifted his opinion in direct response to Roosevelt’s threat to pack the Supreme Court, seeking to avoid executive and congressional interference in the judicial branch and therefore preserve its apparent independence. </p>
<p>But Owen Roberts actually <a href="https://www.worldcat.org/title/franklin-roosevelt-and-the-great-constitutional-war-the-court-packing-crisis-of-1937/oclc/49355855">had decided his position</a> in that case before Roosevelt publicly proposed the judicial reform bill. </p>
<p>Perhaps Owen Roberts already suspected that a court-packing plan, or something like it, was on the horizon when he decided to shift his position. But he might have been sufficiently concerned about the court’s departure from public opinion and the other branches even without such a threat. </p>
<p>When the court diverges drastically from the political mainstream, <a href="https://slate.com/news-and-politics/2012/06/john-roberts-broke-with-conservatives-to-preserve-the-supreme-courts-legitimacy.html">the public views it as less legitimate</a>. That is an outcome Supreme Court justices are usually eager to avoid. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/383343/original/file-20210209-13-laf5d6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Chief Justice John Roberts" src="https://images.theconversation.com/files/383343/original/file-20210209-13-laf5d6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/383343/original/file-20210209-13-laf5d6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/383343/original/file-20210209-13-laf5d6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/383343/original/file-20210209-13-laf5d6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/383343/original/file-20210209-13-laf5d6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/383343/original/file-20210209-13-laf5d6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/383343/original/file-20210209-13-laf5d6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Chief Justice John Roberts has spoken out against politicization of the federal judiciary.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpImpeachmentSenateTrial/72422d82817744ddbc02b67295f136a7/photo">AP Photo/Mark Humphrey</a></span>
</figcaption>
</figure>
<h2>Lessons for today</h2>
<p>There are perhaps more differences than similarities between Roosevelt’s confrontation with the court and the relationship between the Biden administration and the court today. For one thing, this court has not had a decadeslong rightward slant. Biden’s record is also as a centrist, and with a narrow majority in the Senate and a divided American public, he may not seek as transformative an agenda as Roosevelt did.</p>
<p>But the lesson from the 1930s remains: It is difficult for the Supreme Court to sustain a drastic divergence from other branches or public opinion without its legitimacy coming into question. To maintain the reputation of the institution, Supreme Court justices often limit their own divergence from the political mainstream, whether or not the other branches explicitly threaten to interfere.</p><img src="https://counter.theconversation.com/content/154782/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lucy Cane does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The US Supreme Court is often less insulated from partisan politics than many Americans assume.Lucy Cane, Visiting Teaching Assistant Professor of Political Science, University of DenverLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1466572020-09-29T12:32:58Z2020-09-29T12:32:58ZPartisan Supreme Court battles are as old as the United States itself<figure><img src="https://images.theconversation.com/files/360082/original/file-20200925-14-xv9cs.jpg?ixlib=rb-1.1.0&rect=17%2C8%2C5973%2C3979&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">As the nation mourns Justice Ruth Bader Ginsburg, a partisan fight over her replacement begins.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtGinsburg/4662d431bedf4cc997e5c9d4fa974753/photo">AP Photo/Andrew Harnik</a></span></figcaption></figure><p>The framers of the Constitution envisioned a Supreme Court that would be largely outside politics, protecting Americans’ liberties. Alexander Hamilton, for instance, declared that “a limited Constitution … can be preserved in practice no other way than through the … <a href="https://avalon.law.yale.edu/18th_century/fed78.asp">courts of justice</a>.”</p>
<p>Hamilton went on to explain that the courts must “<a href="https://avalon.law.yale.edu/18th_century/fed78.asp">declare all acts contrary to … the Constitution void</a>. Without this, all the reservations of particular rights or privileges would amount to nothing.” That was why the framers created the judiciary – <a href="https://www.law.cornell.edu/constitution/articleiii">specifically, the Supreme Court</a> – as part of the Constitution: so <a href="http://doi.org/10.2307/1122136">its authority would have the same origin</a> as the executive and legislative branches of government.</p>
<p>Yet battles over Supreme Court nominations began not long after the Constitution took effect in 1789 and <a href="https://theconversation.com/3-ways-a-6-3-supreme-court-would-be-different-146558">continue to the present day</a>. Most of them weren’t over ideals or constitutional principles like those Hamilton set out, or even concerns about nominees’ potential involvement in corruption. Instead, they were about partisan politics.</p>
<p>The statistical analysis my undergraduate students and I conducted at LaGrange College reveals that many <a href="https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm">Supreme Court nomination battles</a> <a href="https://www.washingtonpost.com/outlook/supreme-court-politics-history/2020/09/25/b9fefcee-fe7f-11ea-9ceb-061d646d9c67_story.html">were political</a> – and often depended on whether the president’s party also had control of the U.S. Senate.</p>
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<h2>Back to the early days of the United States</h2>
<p>Even George Washington – the very first president of the United States – <a href="https://www.senate.gov/about/powers-procedures/nominations/a-chief-justice-rejected.htm">faced a political conflict</a> over a Supreme Court nominee. </p>
<p>In 1795, Washington nominated South Carolina judge John Rutledge to be the chief justice. Rutledge had actually been an <a href="https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm">associate justice</a> of the Supreme Court from 1789 to 1791, when he resigned to take a leading role in the courts of his home state, meaning he had already been Senate-confirmed.</p>
<p>But when it came time for the Senate to vote on Rutledge’s reappointment to the court’s most senior position, senators rejected him. After his nomination – but before their vote – <a href="https://web.archive.org/web/20200925133729/https://www.senate.gov/about/powers-procedures/nominations/a-chief-justice-rejected.htm">Rutledge had spoken out</a> against a treaty with Great Britain, which Washington had supported and the Senate had just ratified.</p>
<p>The Senate’s own history reports, “In turning down Rutledge, the Senate made it clear that an examination of a nominee’s qualifications would <a href="https://web.archive.org/web/20200925133729/https://www.senate.gov/about/powers-procedures/nominations/a-chief-justice-rejected.htm">include his political views</a>.”</p>
<p>Sometimes, conflict was high: From 1844 through 1861, for instance, twice as many nominees were denied the higher court than were confirmed.</p>
<p>In the modern era, a 1968 filibuster <a href="https://www.latimes.com/opinion/op-ed/la-oe-bobelian-supreme-court-nomination-hearings-fortas-bork-kavanaugh-20190512-story.html">blocked Abe Fortas from becoming the nation’s first Jewish chief justice</a>; Ronald Reagan’s <a href="https://www.cbsnews.com/news/robert-bork-failed-high-court-nominee-dies-at-85/">nomination of Robert Bork</a> was rejected in 1987; and <a href="https://www.nytimes.com/2020/09/19/us/ginsburg-vacancy-garland.html">Senate Majority Leader Mitch McConnell blocked Barack Obama’s nomination of Merrick Garland</a> in 2016.</p>
<p><a href="https://www.cnbc.com/2019/06/28/trumps-two-supreme-court-justices-kavanaugh-and-gorsuch-diverge.html">Donald Trump’s nominations of Neil Gorsuch and Brett Kavanaugh</a> were also politically charged – as will be that of his newest nominee, Amy Coney Barrett.</p>
<p>[<em>Get the best of The Conversation, every weekend.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybest">Sign up for our weekly newsletter</a>.]</p>
<h2>Most nominees are approved</h2>
<p>In a look at the <a href="https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm">Supreme Court nomination votes</a> through history, my student researchers and I found that 22.2% of the 153 nominations were not confirmed.</p>
<p>From 1987 to the present, 21.4% of nominees were voted down, denied a vote or a hearing, forced to withdraw under pressure, filibustered or otherwise denied a spot on the Supreme Court. That’s not much higher than the average rate of Supreme Court rejections across the nation’s history.</p>
<p>From 1968 to 2019, 26.9% were rejected or otherwise cast out, including Fortas’ 1968 failed promotion. There is nothing unusually partisan about the current era. It’s generally business as usual for both parties.</p>
<p><iframe id="nrI4Y" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/nrI4Y/3/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>A key factor is politics</h2>
<p>Our analysis included 119 confirmations of a Supreme Court nomination: 114 justices have served, and four associate justices – Edward White, Harlan Stone, Charles Hughes and William Rehnquist – accepted nominations to be chief justice, requiring a new hearing. One justice, Edwin Stanton, was confirmed in 1869 but died before taking office.</p>
<p>Of these successful nominations, 85.7% occurred when the presidency and <a href="https://www.senate.gov/pagelayout/history/one_item_and_teasers/partydiv.htm">the Senate</a> were controlled by the same political party.</p>
<p>When different parties control the White House and the Senate, it’s much tougher to confirm a nominee, no matter how qualified or honest he or she may be. Less than half of all nominees to the highest court survive the partisan confirmation battles when the president’s party didn’t control the U.S. Senate. </p>
<p>That fits with research done by political scientists Charles R. Shipan and Megan L. Shannon, who found that “<a href="https://doi.org/10.1111/1540-5907.00046">the duration of the confirmation process increases</a> as the ideological distance between the president and the Senate increases.”</p>
<p>Most recently, this happened in 2016, when Democratic President Barack Obama nominated appellate judge Merrick Garland to the Supreme Court. Republicans like <a href="https://talkingpointsmemo.com/livewire/hatch-last-week-obama-wont-pick-moderate-garland">Utah Sen. Orrin Hatch even cited Garland as a good choice</a> who could get confirmed. But <a href="https://www.npr.org/2020/09/22/915152430/partisan-reaction-to-loss-of-ginsburg-shows-how-much-else-has-been-lost">Republicans controlled the Senate</a> and <a href="https://www.npr.org/2018/06/29/624467256/what-happened-with-merrick-garland-in-2016-and-why-it-matters-now">refused to give him a hearing</a>. Senate Majority Leader Mitch McConnell claimed that the American people – through their approaching presidential vote – should have a say in the Supreme Court nomination. </p>
<p>But when Ginsburg’s death <a href="https://www.usatoday.com/story/news/politics/elections/2020/09/21/ruth-bader-ginsburg-replacement-half-say-2020-winner-should-pick-justice/5858460002/">created the exact same scenario</a> in 2020, McConnell promised a swift vote for any nominee the Republican president might present. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1307121192516628480"}"></div></p>
<p>In openly politicizing the Supreme Court, McConnell defies the Founding Fathers but fits neatly into the historical trend. A qualified nominee from a president of an opposing party struggles to make headway, but anyone proposed by a president of the same party can expect a rapid vote.</p>
<p><em>Editor’s note: The research described in this article was conducted with the assistance of LaGrange College undergraduate students Tamino Schoeffer, Yasmin Roper, Jaydon Parrish, Brennan Oates, Nia Johnson, Olivia Hanners, Hannah Godfrey, Natalie Glass, DeQueze Fryer, Madison Demkowski and Maalik Baisden.</em></p><img src="https://counter.theconversation.com/content/146657/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John A. Tures does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many Supreme Court nomination battles depended on whether the president’s party also had control of the US Senate.John A. Tures, Professor of Political Science, LaGrange CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1465582020-09-22T12:25:03Z2020-09-22T12:25:03Z3 ways a 6-3 Supreme Court would be different<figure><img src="https://images.theconversation.com/files/359070/original/file-20200921-18-4y35pz.jpg?ixlib=rb-1.1.0&rect=0%2C33%2C4493%2C2957&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People gather outside the U.S. Supreme Court building as news spread of Associate Justice Ruth Bader Ginsburg's Sept. 18 death.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2020-Ginsburg-TheRage/5dfdc36cccf4402d84bb21e432d8bcbe/photo">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p>If the late Justice Ruth Bader Ginsburg is replaced this year, the Supreme Court will become something the country has not seen since the justices became a dominant force in American cultural life after World War II: a decidedly conservative court.</p>
<p>A court with a 6-3 conservative majority would be a dramatic shift from the court of recent years, which was more closely divided, with Ginsburg as the leader of the liberal wing of four justices and Chief Justice John Roberts as the frequent swing vote. </p>
<p>As a <a href="https://www.palgrave.com/us/book/9783030538507">scholar of the court</a> and the <a href="https://global.oup.com/academic/product/one-nation-two-realities-9780190677176?cc=us&lang=en&">politics of belief</a>, I see three things likely to change in an era of a conservative majority: The court will accept a broader range of controversial cases for consideration; the court’s interpretation of constitutional rights will shift; and the future of rights in the era of a conservative court may be in the hands of local democracy rather than the Supreme Court.</p>
<h2>A broader docket</h2>
<p>The court takes only cases the justices choose to hear. Five votes on the nine-member court make a majority, but <a href="https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1">four is the number required to take a case</a>. </p>
<p>If Roberts does not want to accept a controversial case, it now requires all four of the conservatives – Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas – to accept the case and risk the outcome. </p>
<p>If they are uncertain how Roberts will rule – <a href="https://www.idahostatejournal.com/opinion/columns/the-unpredictable-john-roberts/article_f9ce711c-70b2-541d-9d9c-2ad4777c85c7.html">as many people are</a> – then the conservatives may be not be willing to grant a hearing.</p>
<p>With six conservatives on the court, that would change. More certain of the outcome, the court would likely take up a broader range of divisive cases. These include many <a href="https://www.cnbc.com/2020/05/17/supreme-court-eyes-more-gun-cases-that-could-expand-2nd-amendment.html">gun regulations</a> that have been challenged as a violation of the Second Amendment, and the <a href="https://firstliberty.org/category-media/first-liberty-in-the-news/">brewing conflicts</a> between gay rights and <a href="https://theconversation.com/christianity-at-the-supreme-court-from-majority-power-to-minority-rights-119718">religious rights</a> that the court <a href="https://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn">has so far sidestepped</a>. They also include <a href="https://www.americanprogress.org/issues/women/reports/2020/08/27/489786/state-actions-undermining-abortion-rights-2020/">new abortion regulations</a> that states will implement in anticipation of legal challenges and a favorable hearing at the court.</p>
<p>The three liberal justices would no longer be able to insist that a case be heard without participation from at least one of the six conservatives, effectively limiting many controversies from consideration at the high court.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The U.S. Supreme Court chambers." src="https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=418&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=418&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=418&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=526&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=526&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=526&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The seat formerly occupied by the late Ruth Bader Ginsburg is draped in black, as is the bench in front of her.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtGinsburg/732652e99b9a41a39289c27e025b8c21/photo">Fred Schilling/Collection of the Supreme Court of the United States via AP</a></span>
</figcaption>
</figure>
<h2>A rights reformation</h2>
<p>The rise of a 6-3 conservative court would also mean the end of the expansion of rights the court has overseen during the past half-century.</p>
<p>Conservatives believe constitutional rights such as freedom of religion and speech, bearing arms, and limits on police searches are immutable. But they question the expansive claims of rights that have emerged over time, such as privacy rights and reproductive liberty. These also include <a href="https://www.scotusblog.com/case-files/cases/obergefell-v-hodges/">LGBTQ rights</a>, <a href="https://www.scotusblog.com/case-files/cases/shelby-county-v-holder/">voting rights</a>, <a href="https://www.scotusblog.com/case-files/cases/national-federation-of-independent-business-v-sebelius/">health care rights</a>, and any other rights not specifically protected in the text of the Constitution.</p>
<p>The court has grounded several expanded rights, especially the right to privacy, in the 14th Amendment’s <a href="https://www.law.cornell.edu/wex/due_process">due process clause</a>: “…nor shall any state deprive any person of life, liberty, or property, without due process of law.” This sounds like a matter of procedure: The government has to apply the same laws to everyone without arbitrary actions. From the conservative perspective, courts have expanded the meaning of “due process” and “liberty” <a href="https://billofrightsinstitute.org/educate/educator-resources/lessons-plans/landmark-supreme-court-cases-elessons/roe-v-wade-1973/">far beyond their legitimate borders</a>, taking decision-making away from democratic majorities.</p>
<p>Consequently, LGBTQ rights will not expand further. The <a href="https://www.oyez.org/cases/2002/02-102">line of decisions</a> that made Justice Anthony Kennedy famous for his support of gay rights, <a href="https://www.oyez.org/cases/2014/14-556">culminating in marriage equality in 2015</a>, will advance no further.</p>
<p>Cases that seek to outlaw capital punishment under the Eighth Amendment’s ban on “<a href="https://www.law.cornell.edu/constitution/eighth_amendment">cruel and unusual punishments</a>” will also cease to be successful. In 2019 the court ruled that <a href="https://www.scotusblog.com/case-files/cases/bucklew-v-precythe/">excessive pain caused by a rare medical condition</a> was not grounds for halting a death sentence. That execution went forward, and further claims against the constitutionality of the death penalty will not.</p>
<p>Challenges to voting restrictions will likely also fail. This was previewed in the <a href="https://www.scotusblog.com/case-files/cases/husted-v-philip-randolph-institute/">5-4 decision in 2018</a> allowing Ohio to purge voting rolls of infrequent voters. The Bill of Rights <a href="https://theconversation.com/the-right-to-vote-is-not-in-the-constitution-144531">does not protect voting as a clear right</a>, leaving voting regulations to state legislatures. The conservative court will likely allow a broader range of restrictive election regulations, including <a href="https://theconversation.com/stripping-voting-rights-from-felons-is-about-politics-not-punishment-139651">barring felons from voting</a>. It may also limit the census enumeration to citizens, effectively <a href="https://www.whitehouse.gov/presidential-actions/memorandum-excluding-illegal-aliens-apportionment-base-following-2020-census/">reducing the congressional power of states that have large noncitizen immigrant populations</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman waits to receive her ballot." src="https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Early voting in the November election has already begun; voting rights may be restricted by a more conservative Supreme Court.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2020/0962848422434504af3ba76dccc8b0e3/photo">AP Photo/Andrew Harnik</a></span>
</figcaption>
</figure>
<p><a href="https://theconversation.com/who-is-born-a-us-citizen-127403">Birthright citizenship</a>, which many believe is protected by the 14th Amendment, will likely not be formally recognized by the court. The court has never ruled that anyone born on U.S. soil is <a href="https://constitutioncenter.org/blog/breaking-down-the-birthright-citizenship-debate">automatically a citizen</a>. The closest it came was an 1898 ruling <a href="https://www.law.cornell.edu/supremecourt/text/169/649">recognizing the citizenship of children of legal residents</a>, but the court has been silent on the divisive question of children born of unauthorized residents.</p>
<p>The <a href="https://www.washingtonpost.com/opinions/citizenship-shouldnt-be-a-birthright/2018/07/18/7d0e2998-8912-11e8-85ae-511bc1146b0b_story.html">conservative understanding of the 14th Amendment</a> is that it had no intention of granting birthright citizenship to those who are in the country <a href="https://fedsoc.org/commentary/videos/does-the-fourteenth-amendment-guarantee-birthright-citizenship-policybrief">without legal authorization</a>.</p>
<p>Noncitizens may also find themselves with fewer rights: Many conservatives argue that the <a href="https://law.justia.com/constitution/us/amendment-14/">14th Amendment</a> requires <a href="https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/704#the-privileges-or-immunities-clause-americas-lost-clause-by-akhil-reed-amar">state governments to abide by the Bill of Rights</a> only when dealing with <a href="https://archive.thinkprogress.org/clarence-thomas-bill-of-rights-doesnt-apply-to-non-citizens-d02757866866/">U.S. citizens</a>. </p>
<p>In any case, individual rights will likely be less important than the government’s efforts to protect national security – whether fighting terrorism, conducting surveillance or dealing with emergencies. Conservatives argue that the public need for security often trumps private claims of rights. This was previewed in <a href="https://www.scotusblog.com/case-files/cases/trump-v-hawaii-3/">Trump v. Hawaii</a> in 2018, when the court upheld the travel ban imposed against several Muslim countries.</p>
<p>Not all rights will be restricted. Those protected by the original Bill of Rights will gain greater protections under a conservative court. Most notably this includes gun rights under the Second Amendment, and <a href="https://theconversation.com/christianity-at-the-supreme-court-from-majority-power-to-minority-rights-119718">religious rights under the First Amendment</a>. </p>
<p>Until recently, the court had viewed religious rights primarily through the <a href="https://www.law.cornell.edu/wex/establishment_clause">establishment clause</a>’s limits on government endorsement of religion. But in the past decade, that has shifted in favor of the <a href="https://www.law.cornell.edu/wex/free_exercise_clause">free exercise clause</a>’s ban on interference with the practice of religion. </p>
<p>The court has upheld claims to <a href="https://www.scotusblog.com/case-files/cases/espinoza-v-montana-department-of-revenue/">religious rights in education</a> and <a href="https://www.scotusblog.com/case-files/cases/our-lady-of-guadalupe-school-v-morrissey-berru/">religious exceptions to anti-discrimination laws</a>. That trend will continue.</p>
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<a href="https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man behind a counter waits on a customer." src="https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Baker Jack Phillips, owner of Masterpiece Cakeshop, manages his Colorado business after the U.S. Supreme Court ruled that he could refuse to make a wedding cake for a same-sex couple because of his religious beliefs.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtWeddingCakeCase/b0915d3e4f9b48f0afc8991849704e4f/photo">AP Photo/David Zalubowski</a></span>
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<h2>A return to local democracy</h2>
<p>Perhaps the most important ramification of a 6-3 conservative court is that it will return many policies to local control. </p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>For example, overturning Roe v. Wade – which is likely but not certain under a 6-3 court – would leave the legality of abortion up to each state. </p>
<p>This will make state-level elected officials the guardians of individual liberties, shifting power from courts to elections. How citizens and their elected officials respond to this new emphasis is perhaps the most important thing that will determine the influence of a conservative court.</p><img src="https://counter.theconversation.com/content/146558/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A 6-3 conservative court will hear a broader range of controversial cases, shift interpretations of individual rights and put more pressure on local democracy to make policy decisions.Morgan Marietta, Associate Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1465552020-09-21T13:49:10Z2020-09-21T13:49:10ZHow presidents have shaped the US Supreme Court – and why the choice of its next justice is so crucial<p>After the death of the supreme court justice, Ruth Bader Ginsburg, President Donald Trump finds himself with an opportunity to tip the US Supreme Court into a 6-3 conservative majority. Appointing a third justice to the court could cement Trump’s political legacy, and that of his conservative supporters, for generations. </p>
<p>Less than 48 hours after the announcement of Ginsburg’s death, the <a href="https://theconversation.com/this-is-why-the-fight-over-the-supreme-court-could-make-the-us-presidential-election-even-nastier-146541">battle</a> over her successor began. The biggest question so far is whether or not a replacement should be appointed so close to the November election. Both parties are, once again, playing political football with the court, and that only damages its <a href="https://theconversation.com/trumps-challenge-to-the-us-legal-system-must-be-taken-seriously-91431">long-term institutional legitimacy</a>.</p>
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<a href="https://theconversation.com/ruth-bader-ginsburg-helped-shape-the-modern-era-of-womens-rights-even-before-she-went-on-the-supreme-court-95705">Ruth Bader Ginsburg helped shape the modern era of women's rights – even before she went on the Supreme Court</a>
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<p>The current moment is absolutely critical. American politics is deeply and bitterly divided and that has been reflected in the sharper divisions over court appointments in the past two decades. This fight will be no different. In fact, it’s likely to be even more bitter. </p>
<p>The loss of Ginsburg, the most consistent and vocal of the court’s liberals, and her potential replacement by a conservative in the vein of either Neil Gorsuch or Brett Kavanaugh – Trump’s two previous supreme court justice picks – would tip the balance of the court towards the conservatives more decisively than at any time since the early 1930s. </p>
<p>The legacy of the rights revolution of the 1950s and 1960s now hangs in the balance. That possibility represents the culmination of a decades-long plan of action by <a href="https://religionandpolitics.org/2015/06/10/the-rise-of-christian-conservative-legal-organizations/">conservatives</a> who specifically and deliberately targeted the nation’s courts. A strategy more than four decades in the making now stands on the verge of complete success.</p>
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Read more:
<a href="https://theconversation.com/this-is-why-the-fight-over-the-supreme-court-could-make-the-us-presidential-election-even-nastier-146541">This is why the fight over the Supreme Court could make the US presidential election even nastier</a>
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<p>A word of warning about terminology here. For years, politicians, the media, and commentators have been using the terms “liberal” and “conservative” to describe the balance on the court. Too often that is interpreted as synonymous with Democrat and Republican. But this is far too simplistic and overlooks <a href="https://www.c-span.org/classroom/document/?6733">consistent</a> denials <a href="https://www.youtube.com/watch?v=DwmGonca23Q">from the justices</a> that they make decisions based on party politics. Liberal and conservative should more precisely be regarded as justices’ approaches to reading, understanding and applying the law. Although, of course, this may overlap with their personal politics, it is not quite the same as making political decisions.</p>
<h2>Appointments and their consequences</h2>
<p>Appointing three or more justices is not historically unusual for a president. Of the 20 presidents elected since the turn of the 20th century, ten before Trump had the opportunity to appoint more than two justices, including Franklin D. Roosevelt (FDR) who appointed nine, Dwight Eisenhower five and Richard Nixon four. It’s only in recent years that the average number of supreme court appointments made by presidents has dropped to closer to two.</p>
<p>But the more justices a president can appoint, the greater the opportunity to shape the future direction of the nation’s highest court. FDR’s nine appointments saw <a href="https://books.google.co.uk/books/about/Scorpions.html?id=YbQ1AQAAQBAJ&source=kp_book_description&redir_esc=y">the court</a> shift from the late 1930s onwards from opposing most government regulation of the economy, to supporting it, to finally largely retreating from economic issues entirely. This represented the end of the court’s most conservative period of the 20th century and laid the foundation for its shift in the second half of the century towards an increasing focus on issues of civil rights and civil liberties. </p>
<p>Eisenhower appointed Earl Warren to the court, who served as chief justice while the court drove the massive expansion of individual civil liberties in the 1960s known as the <a href="https://books.google.co.uk/books/about/Democracy_and_Equality.html?id=stnBDwAAQBAJ&source=kp_book_description&redir_esc=y">rights revolution</a>. But his successor as chief justice, Warren Burger, aided by four Nixon appointees, slowly chipped away at the legal underpinnings of key Warren court precedents, weakening their scope and protections.</p>
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<img alt="Nine US supreme court justices under Earl Warren wearing their robes." src="https://images.theconversation.com/files/359022/original/file-20200921-20-1b002pk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359022/original/file-20200921-20-1b002pk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=409&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359022/original/file-20200921-20-1b002pk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=409&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359022/original/file-20200921-20-1b002pk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=409&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359022/original/file-20200921-20-1b002pk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=514&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359022/original/file-20200921-20-1b002pk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=514&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359022/original/file-20200921-20-1b002pk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=514&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The Warren Court in 1953.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Warren_Supreme_Court.jpg">Wikimedia Commons</a></span>
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<p>Reagan’s nominations cemented a more conservative majority on the court in the 1980s. A conservative-leaning court with at least one centrist justice who might be persuaded to join the liberals is where the situation stood until Ginsburg’s death. </p>
<h2>Abortion, guns and affirmative action</h2>
<p>If Trump is successful in appointing Ginsburg’s successor, it’s unlikely the court will lurch suddenly and dramatically to the right. More likely is a situation akin to that of the Burger Court: slow, incremental change that will eat away at the edges or underpinnings of key liberal rulings. The changes are no less fundamental but might be less easy to see, at least at first.</p>
<p>Although <a href="https://www.law.cornell.edu/supremecourt/text/410/113">Roe v Wade</a>, which protected, within limits, a woman’s right to terminate a pregnancy, is the case most often considered as under threat from a court with a legal conservative majority, the threat is actually broader. Roe rested on a 1965 ruling, <a href="https://www.law.cornell.edu/supremecourt/text/381/479">Griswold v Connecticut</a>, which established a “right to privacy” in the constitution, an area of personal decision-making into which the state could not intrude except without very good reason. Abortion rights are not the only issue built on the foundation of privacy: reproductive choice, sexual privacy and some legal rights for the LGBTQ+ community rest on the same foundation. They too may be at risk from a more conservative court.</p>
<p>Affirmative action programmes, especially those which use race as part of university admissions, and which have been <a href="https://www.scotusblog.com/2014/04/opinion-analysis-affirmative-action-up-to-the-voters/">hanging by a thread</a> in the past few years, are also likely to be targets for a new court majority.</p>
<p>Expect, too, new rulings on gun rights. Despite the 2008 ruling in <a href="https://www.law.cornell.edu/supremecourt/text/07-290">District of Columbia v Heller</a> which established a right to bear arms for self-defence, conservatives have become increasingly incensed at state and local laws governing gun ownership. These have been upheld by lower courts while the supreme court has remained <a href="https://journals.openedition.org/ejas/11874">largely silent</a>. A more conservative court is likely to rejoin the debate. </p>
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Read more:
<a href="https://theconversation.com/can-trump-and-mcconnell-get-through-the-4-steps-to-seat-a-supreme-court-justice-in-just-6-weeks-146544">Can Trump and McConnell get through the 4 steps to seat a Supreme Court justice in just 6 weeks?</a>
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<p>And religious conservatives might well hope that a third Trump appointee will continue the recent trend of holding religious liberty as a <a href="https://www.nytimes.com/2020/02/27/opinion/supreme-court-religion.html">crucial right</a>, even if it conflicts with the rights of others. Those who continue to believe in the importance of the separation of church and state may find that the wall between them will crumble further and faster than it has to this point.</p>
<p>In 2016, Democrats fought against hard against Trump’s choice of Gorsuch less because of Gorsuch himself and more in anticipation of the fight they are now facing. Ginsburg is gone and in the White House is a Republican dedicated to appointing deeply legally conservative justices. The battle will be bitter and bruising. And the result will have long lasting consequences for the nation and its citizens, whatever the outcome.</p><img src="https://counter.theconversation.com/content/146555/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Emma Long does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With a new vacancy on the US Supreme Court, Donald Trump has the opportunity to alter the court’s direction for decades. He’s not the first.Emma Long, Senior Lecturer in American Studies, University of East AngliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1409102020-06-23T19:56:23Z2020-06-23T19:56:23ZWhen Supreme Court justices defy expectations<figure><img src="https://images.theconversation.com/files/343288/original/file-20200622-55021-1biin20.jpg?ixlib=rb-1.1.0&rect=26%2C8%2C2959%2C1886&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Justice Neil Gorsuch, a Trump appointee, surprised many court watchers by authoring the decision to expand the Civil Rights Act.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-applauds-as-supreme-court-associate-news-photo/666861628?adppopup=true">Chip Somodevilla/Getty Images</a></span></figcaption></figure><p>The U.S. Supreme Court recently ruled in the important and much-anticipated case, <a href="https://www.oyez.org/cases/2019/17-1618">Bostock v. Clayton County, Georgia</a>, that the LGBTQ community is protected from employment discrimination. </p>
<p>The 6-3 ruling took many by surprise, in part because two conservative justices were in the majority, and one of them, Justice Neil Gorsuch, wrote the majority opinion. </p>
<p>In this transformative moment in U.S. history, when the public supports the recognition of fundamental human rights, including the right to marry the person of one’s choice, the law appears to be catching up with society. And the U.S. Supreme Court has decided cases in ways that <a href="https://www.pewforum.org/fact-sheet/changing-attitudes-on-gay-marriage/">reflect social realities</a>.</p>
<p>The principles of equality and nondiscrimination are at the heart of <a href="https://www.abc.net.au/religion/political-equality-and-american-democracy/10581912">American democratic tradition</a>. As <a href="https://dornsife.usc.edu/cf/faculty-and-staff/faculty.cfm?pid=1003632">a public law scholar</a>, I believe the bold decision in Bostock is consistent with a historic pattern of some justices defying expectations when faced with a major social transformation. </p>
<p>Instead of ruling to maintain the discriminatory status quo, they have demonstrated their commitment to these basic values of democracy by addressing historic injustices. </p>
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<img alt="" src="https://images.theconversation.com/files/343291/original/file-20200622-55013-1gg7tuy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/343291/original/file-20200622-55013-1gg7tuy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/343291/original/file-20200622-55013-1gg7tuy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/343291/original/file-20200622-55013-1gg7tuy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/343291/original/file-20200622-55013-1gg7tuy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/343291/original/file-20200622-55013-1gg7tuy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/343291/original/file-20200622-55013-1gg7tuy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Proponents of same-sex marriage across the country celebrated its legalization in 2015.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/thousands-of-same-sex-marriage-supporters-in-west-hollywood-news-photo/563914089?adppopup=true">Joe Kohen/Getty Images</a></span>
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<h2>Disappointed presidents</h2>
<p>One classic example of a justice defying expectations to promote civil rights is <a href="https://www.oyez.org/justices/earl_warren">Chief Justice Earl Warren</a>, who was appointed by President Dwight Eisenhower and served on the court between 1953 and 1969.</p>
<p>Warren arrived at the court as a Republican with conservative credentials. He had <a href="https://www.jstor.org/stable/762484?seq=1">been a proponent of</a> President Franklin D. Roosevelt’s decision to <a href="https://www.sfchronicle.com/news/article/Calif-officials-including-Earl-Warren-once-13437345.php">place Japanese Americans in concentration camps</a>.</p>
<p>But as a Supreme Court justice, Warren did not meet the expectation that he would bring a conservative viewpoint to decisions. Instead, he championed civil rights as chief justice.</p>
<p>In 1954, he wrote the <a href="https://www.oyez.org/cases/1940-1955/347us483">landmark opinion in Brown v. Board of Education</a>, a unanimous decision which led to desegregration of public schools by overturning an 1896 precedent and rejecting the idea that “separate but equal” was constitutional. Social science showing the <a href="https://www.penguinrandomhouse.com/books/93824/simple-justice-by-richard-kluger/">psychic injury that racism caused</a> <a href="https://www.smithsonianmag.com/science-nature/psychologist-work-racial-identity-helped-overturn-school-segregation-180966934/">was crucial to this outcome</a>. </p>
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<a href="https://images.theconversation.com/files/343566/original/file-20200623-188931-1obta3a.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/343566/original/file-20200623-188931-1obta3a.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/343566/original/file-20200623-188931-1obta3a.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=543&fit=crop&dpr=1 600w, https://images.theconversation.com/files/343566/original/file-20200623-188931-1obta3a.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=543&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/343566/original/file-20200623-188931-1obta3a.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=543&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/343566/original/file-20200623-188931-1obta3a.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=682&fit=crop&dpr=1 754w, https://images.theconversation.com/files/343566/original/file-20200623-188931-1obta3a.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=682&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/343566/original/file-20200623-188931-1obta3a.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=682&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The research conducted by Dr. Kenneth Clark and his wife, Mamie Phipps Clark, helped move the Supreme Court, in Brown v. Board of Education, to declare segregation in public schools unconstitutional.</span>
<span class="attribution"><a class="source" href="https://www.loc.gov/exhibits/brown/brown-brown.html#obj62">Gordon Parks, photographer; Library of Congress</a></span>
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<p>Some have speculated about Warren and his unexpected shift. His sense of <a href="https://books.google.com/books/about/East_to_America.html?id=Yu51AAAAMAAJ">guilt over his active involvement in the Japanese American incarceration</a> was apparently influential. The notion among the legal community about Warren’s opinion in Brown v. Board of Education is that “<a href="https://muse.jhu.edu/article/13506">the Japanese Americans paid the ransom to free the Blacks</a>.”</p>
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<a href="https://images.theconversation.com/files/343294/original/file-20200622-55009-48i1c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/343294/original/file-20200622-55009-48i1c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/343294/original/file-20200622-55009-48i1c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=749&fit=crop&dpr=1 600w, https://images.theconversation.com/files/343294/original/file-20200622-55009-48i1c4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=749&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/343294/original/file-20200622-55009-48i1c4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=749&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/343294/original/file-20200622-55009-48i1c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=941&fit=crop&dpr=1 754w, https://images.theconversation.com/files/343294/original/file-20200622-55009-48i1c4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=941&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/343294/original/file-20200622-55009-48i1c4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=941&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Earl Warren came to the Supreme Court as a conservative and later turned into a champion for civil rights.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/portrait-of-american-jurist-chief-justice-of-the-supreme-news-photo/82316310?adppopup=true">Bachrach/Getty Images</a></span>
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<p>Although Eisenhower thought Warren would be <a href="https://rowman.com/ISBN/9780847696048/Justices-Presidents-and-Senators-A-History-of-U-S-Supreme-Court-Appointments-from-Washington-to-Clinton-revised-edition">conservative in his judicial philosophy, that was hardly the case</a>. In this and subsequent cases, <a href="https://supremecourthistory.org/timeline_court_warren.html">what was called the “Warren court”</a> became synonymous with a series of rulings that expanded the scope of constitutional rights. </p>
<p>When asked what he considered his most serious mistakes, Eisenhower replied: <a href="https://www.theatlantic.com/magazine/archive/2018/04/commander-v-chief/554045/">“They are both sitting on the court</a>.” </p>
<p>He was referring to Justice Warren and <a href="https://www.nytimes.com/1997/07/25/us/william-brennan-91-dies-gave-court-liberal-vision.html">Justice William Brennan, a Republican</a> who had been on the New Jersey Supreme Court and whom Eisenhower appointed to the Supreme Court in 1956. Both judges were more liberal in their judicial philosophy than anticipated. </p>
<p>In these instances and others, <a href="http://epstein.wustl.edu/research/JusticePresident.pdf">presidents have been known to be disappointed</a> by the <a href="https://academic.oup.com/jcs/article/17/3/530/814389">decisions of those they appoint</a>. </p>
<h2>Unusual coalitions</h2>
<p>When justices are confronted with a new type of discrimination and are unconstrained by past precedent, they may have the ability to form coalitions on the court to advance civil rights. For instance, <a href="https://www.nytimes.com/1986/11/09/business/archives-business-sexual-harassment-workplace-grueling-struggle-for-equality.html">the advocacy campaign against sexual harassment</a> outside of the court, aimed at addressing egregious misconduct in the workplace, appears to have exerted influence inside the court. </p>
<p>Even though women had experienced sexual harassment for centuries, no one had even coined a term for <a href="https://time.com/4286575/sexual-harassment-before-anita-hill/">the phenomenon until the 1970s</a>, when the federal government began to formulate new policies. </p>
<p>Policymakers recognized that sexual harassment was illegal when it took the form of coercing employees to perform sexual acts in exchange for rewards or to avoid losing their jobs or work-related benefits. </p>
<p>Subsequently, the Equal Employment Opportunity Commission, the federal agency with responsibility for dealing with employment discrimination, was inundated with complaints. </p>
<p>When the Supreme Court first considered this issue in <a href="https://www.oyez.org/cases/1985/84-1979">Meritor v. Vinson</a> in 1986, the notion was barely a decade old. Moreover, the central question was a novel one, whether an employee could sue for a different type of sexual harassment, a so-called “hostile work environment.”</p>
<p>In a <a href="https://www.oyez.org/cases/1985/84-1979">9-0 decision written by Chief Justice William Rehnquist</a> – who was appointed by President Richard Nixon and elevated to chief justice by President Ronald Reagan – the court <a href="https://wwnorton.com/books/9780393696738">unanimously</a> ruled that the protections in federal civil rights law did cover this type of sexual harassment. </p>
<p>The Meritor ruling, despite criticism of its treatment of relevant evidence and employer liability standards, was hailed as a victory for advocates of civil rights. </p>
<p>As with Bostock, the ruling in the <a href="https://kansaspress.ku.edu/978-0-7006-1323-6.html">Meritor decision was surprising</a>. Conservative justices had taken a liberal position and joined liberal justices in an effort to combat egregious misconduct in the workplace. They did this by expanding the scope of discrimination on the basis of sex with the new and more <a href="https://www.washingtonpost.com/outlook/2019/06/19/how-supreme-court-made-sexual-harassment-cases-more-difficult-win/">expansive interpretation of sexual harassment</a>.</p>
<h2>Marriage equality</h2>
<p>Another remarkable social change in American society is the recognition of same-sex marriage, known as marriage equality. Litigation began over this issue in the late 20th century with Baehr v. Lewin (1993), in which <a href="https://casetext.com/case/baehr-v-lewin-1">the Hawaii Supreme Court</a> held that the failure of a clerk to issue marriage licenses to a same-sex couple <a href="https://www.peterlang.com/abstract/title/57672">was a form of sex discrimination</a>. </p>
<p>As the Human Rights Campaign, Lambda Legal and other public interest organizations mounted campaigns advocating for same-sex marriage, public attitudes gradually shifted in favor of official <a href="https://www.lambdalegal.org/?gclid=EAIaIQobChMI_-TB-6aM6gIVIRh9Ch3OLwGyEAAYASAAEgIIg_D_BwE">recognition of customary marriages of same-sex couples</a>.</p>
<p>This social movement culminated in the landmark U.S. Supreme Court decision <a href="https://www.oyez.org/cases/2014/14-556">Obergefell v. Hodges</a> in 2015. Acknowledging that the U.S. had undergone a significant social transformation in accepting diverse types of intimate relationships, the court resolved to make the law match the times.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/343321/original/file-20200622-55017-lsemzq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/343321/original/file-20200622-55017-lsemzq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/343321/original/file-20200622-55017-lsemzq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/343321/original/file-20200622-55017-lsemzq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/343321/original/file-20200622-55017-lsemzq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/343321/original/file-20200622-55017-lsemzq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/343321/original/file-20200622-55017-lsemzq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/343321/original/file-20200622-55017-lsemzq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Amy Snow and Christelle Snow (R), who married in April 2015 under California law, celebrate the Supreme Court ruling on same-sex marriage in June 2015.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/amy-snow-and-christelle-snow-who-married-in-april-celebrate-news-photo/478728160?adppopup=true">David McNew/Getty Images</a></span>
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<p>The 5-4 decision, which held that the right to marry is fundamental and guaranteed by the Constitution, was authored by Justice Anthony Kennedy. Kennedy said he voted in favor of this position even though <a href="https://www.bloomberg.com/news/videos/2018-11-28/retired-justice-kennedy-says-his-gay-marriage-ruling-surprised-him-video">it did not correspond to his own Catholic religious tenets</a>. </p>
<p>Kennedy said he undertook writing the landmark opinion because of his religious beliefs: “It seemed to me I couldn’t hide,” he told an interviewer. “The nature of injustice is you can’t see it in your own time,” <a href="https://www.bloomberg.com/news/videos/2018-11-28/retired-justice-kennedy-says-his-gay-marriage-ruling-surprised-him-video">Kennedy said</a>. “And as I thought about it more and more, it seemed to me just wrong under the Constitution to say that over 100,000 adopted children of gay parents could not have their parents married.”</p>
<h2>Social upheaval creates new context</h2>
<p>In the midst of immense social upheaval, courts and individual justices grapple with rules that must be reassessed in a new context – so it seems less surprising that justices consider carefully the meaning of equality and sex discrimination in light of the changing times. </p>
<p>This set of examples suggests that it may be unwise to presume that judges will vote in particular ways because of their backgrounds or judicial philosophy. Over the years, justices have felt the exigencies of the times that sometimes lead them to rule in ways that will protect the American constitutional order. Chief Justice John Roberts, expected to be more ideologically conservative in his rulings, has been praised for <a href="https://www.theatlantic.com/magazine/archive/2007/01/robertss-rules/305559/">his role in building consensus, his temperament and his fair-mindedness</a>.</p>
<p>While this certainly does not happen all the time, it may at least indicate that the U.S. political system can survive the ongoing crises of the 21st century associated with hyper-polarization. Ideological considerations, while often important in judicial decision-making, do not necessarily provide a guide to future decisions. </p>
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<p class="fine-print"><em><span>Alison Dundes Renteln does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Justice Neil Gorsuch joined the Supreme Court as a conservative. But his ruling in a major civil rights case is part of a pattern of justices setting aside ideology to address historic injustices.Alison Dundes Renteln, Professor of Political Science, Anthropology, Public Policy and Law, USC Dornsife College of Letters, Arts and SciencesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1408782020-06-16T22:03:48Z2020-06-16T22:03:48ZWhat the Supreme Court’s decision on LGBT employment discrimination will mean for transgender Americans<figure><img src="https://images.theconversation.com/files/342276/original/file-20200616-23235-1qwpzad.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Transgender activist Aimee Stephens sat outside the Supreme Court as the court held oral arguments dealing with workplace discrimination.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/transgender-activist-aimee-stephens-sits-in-her-wheelchair-news-photo/1174525050?adppopup=true">Saul Loeb/AFP via Getty Images</a></span></figcaption></figure><p>In a landmark decision, <a href="https://www.oyez.org/cases/2019/17-1618">the United States Supreme Court has ruled</a> that gay men, lesbian women, bisexual individuals and transgender people – individuals whose sex assigned at birth does not match their current innate sense of being male, female, both or neither – cannot be discriminated against in the workplace simply because of their sexual orientation or gender identity.</p>
<p>The decision involved three separate but related cases: two involving men who were fired for being gay and one involving a transgender woman, Aimee Stephens, who was fired from <a href="https://www.oyez.org/cases/2019/18-107">her job at a funeral home after her transition</a>. The court’s ruling in favor of Stephens affects the estimated <a href="https://williamsinstitute.law.ucla.edu/publications/trans-adults-united-states/">1.4 million</a> adults in the United States who identify as transgender. </p>
<p>Stephens passed away on May 12, 2020, just one month before the Supreme Court ruled in her favor.</p>
<p>A <a href="http://dx.doi.org/10.1177/0019793920902776">study we published on Feb. 11, 2020</a> suggests that nondiscrimination protections for transgender people are likely to be especially meaningful. As scholars of <a href="https://scholar.google.com/citations?user=80vVFBUAAAAJ&hl=en">economics</a>, <a href="https://scholar.google.com/citations?user=xYqTZcsAAAAJ&hl=en">health</a> and LGBT populations, we wanted to find out about how transgender people fare economically. We learned that on nearly all measures of economic and social well-being, they do much worse than the general population.</p>
<h2>Little is known about transgender people</h2>
<p>A growing body of research on sexual minorities has steadily advanced over the past 25 years. However, when we first started working on this research project three years ago, we found little published work on the economic lives of transgender people.</p>
<p>Most research that did exist came only from studies of one or two progressive-leaning states, such as <a href="https://williamsinstitute.law.ucla.edu/demographics/health-trans-adults-ca/">California</a> or <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3490554/pdf/AJPH.2011.300315.pdf">Massachusetts</a>, or used “convenience” or “snowball” <a href="https://transequality.org/issues/us-trans-survey">samples</a> of transgender people where participants are recruited through social networks.</p>
<p>These types of data are useful, but they might not accurately reflect the general transgender population in the United States. </p>
<h2>What we found</h2>
<p>This is where our study came in. </p>
<p>We used data from an annual telephone survey of over 400,000 individuals in the United States that asks people about their employment, income, health insurance coverage and overall health. It’s called the <a href="https://www.cdc.gov/brfss/index.html">Centers for Disease Control and Prevention’s Behavioral Risk Factor Surveillance Survey</a>.</p>
<p>Starting in 2014, this survey gave states the option to ask respondents their sexual orientation and gender identity. When asked “Are you transgender?” over 2,100 adults responded “yes.”</p>
<p>Although this is only a fraction of 1% of the total survey sample, it is a much larger sample of transgender people than has been used in other survey-based studies. And, importantly, it allowed us to examine transgender individuals from states as diverse as Pennsylvania, Oklahoma, Idaho and Florida.</p>
<p>The most consistent pattern we found is that individuals who described themselves as transgender did much worse in aspects of their lives that affect their economic well-being – like educational attainment, employment and poverty status – than otherwise comparable individuals who did not identify as transgender.</p>
<p>This was especially true for employment. Transgender people were 11 percentage points less likely to be working compared to nontransgender, or cisgender, people.</p>
<p>We found that this effect was driven by two forces: Transgender people were more likely to be unemployed – that is, they would like to work but are not currently working – and much more likely to report that they are unable to work.</p>
<p>The data don’t tell us why transgender people may be unable to work. It may be due to a disability, poor health, lack of transportation or other structural barriers. It’s also possible that transgender people have been turned away so many times by potential employers – possibly due to discrimination which is now illegal throughout the United States – that they are what economists aptly refer to as <a href="https://theconversation.com/forget-lower-jobs-growth-the-number-of-people-whove-stopped-looking-for-work-is-much-more-worrisome-118445">“discouraged,”</a> and thus they report that they are “unable to (find) work.”</p>
<p>Our results also showed that transgender people had much lower rates of college education than nontransgender people. While 28% of nontransgender people in the survey said they had a college education, the same was true for only 14% of transgender respondents.</p>
<p>Even after accounting for lower college education rates, we found that transgender people had higher rates of poverty and worse health than otherwise comparable individuals who did not identify as transgender.</p>
<p><iframe id="moU0M" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/moU0M/3/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>Rapidly changing policy</h2>
<p>Of course, there are limits to the Supreme Court decision, and LGBT rights advocates have already stressed the need to adopt a federal <a href="https://www.congress.gov/bill/116th-congress/house-bill/5/text">Equality Act</a> which would extend nondiscrimination protections to housing, public accommodations, education and health care - all areas of life that are currently not explicitly protected by federal civil rights law for LGBT people. The need for these protections is highlighted by the timing of the Supreme Court decision: Just three days prior to the ruling, the Health and Human Services Office for Civil Rights <a href="https://www.hhs.gov/about/news/2020/06/12/hhs-finalizes-rule-section-1557-protecting-civil-rights-healthcare.html">rolled back nondiscrimination protections for transgender people in health care</a> that were instituted by the prior administration.</p>
<p>It is too early to tell how nondiscrimination protections for transgender people in these other important areas of life will play out in the various branches of government, but the recent Supreme Court ruling outlawing LGBT discrimination in employment is likely to improve the economic situation facing transgender Americans, which our research shows is already very precarious. </p>
<p><em>This is an updated version of <a href="https://theconversation.com/transgender-americans-are-more-likely-to-be-unemployed-and-poor-127585">an article</a> originally published on Feb. 13, 2020.</em></p>
<p>[<em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>.]</p><img src="https://counter.theconversation.com/content/140878/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christopher Carpenter receives funding for LGBT related research from the National Institutes of Health and the Robert Wood Johnson Foundation. The views expressed here are his own.</span></em></p><p class="fine-print"><em><span>Gilbert Gonzales receives funding for LGBT related research from the National Institutes of Health and the Robert Wood Johnson Foundation. The views expressed here are his own.</span></em></p>In a national survey, transgender individuals had worse employment outcomes, lower incomes and higher rates of poverty than cisgender people.Christopher Carpenter, E. Bronson Ingram Professor of Economics and Director of the Vanderbilt LGBT Policy Lab, Vanderbilt UniversityGilbert Gonzales, Assistant Professor of Medicine, Health and Society, Vanderbilt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1409032020-06-16T19:15:39Z2020-06-16T19:15:39ZSupreme Court expands workplace equality to LGBTQ employees, but questions remain<figure><img src="https://images.theconversation.com/files/342266/original/file-20200616-23231-17gklex.jpg?ixlib=rb-1.1.0&rect=49%2C0%2C5472%2C3645&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People gather near the Stonewall Inn in New York City to celebrate the Supreme Court's landmark ruling on LGBTQ workers' rights.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-gather-at-the-historic-stonewall-inn-to-celebrate-news-photo/1220372240">John Lamparski/NurPhoto via Getty Images</a></span></figcaption></figure><p>Even before the Supreme Court’s June 15 decision, many Americans <a href="https://www.reuters.com/article/us-usa-lgbt-stonewall-equality/americans-perception-of-lgbtq-rights-under-federal-law-largely-incorrect-reuters-ipsos-idUSKCN1TC120">already – and incorrectly – believed</a> that federal law protected lesbians, gay men and transgender people from being fired or otherwise discriminated against at work.</p>
<p>The road to the <a href="https://www.scotusblog.com/2020/06/opinion-analysis-federal-employment-discrimination-law-protects-gay-and-transgender-employees/">ruling confirming that belief</a> involved years of advocacy and many losses – and while this <a href="https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf">decision</a> is a landmark in that effort, more legal work remains to be done to determine the full scope of LGBTQ workers’ rights.</p>
<h2>Concerns about sex discrimination</h2>
<p>The <a href="https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=3038&context=bclr">Civil Rights Act of 1964</a> was a historic law that banned U.S. employers from discriminating against workers on the basis of their race, color, religion, national origin and sex. </p>
<p>During the bill’s debate, members of the House and Senate had lengthy discussions about discrimination on the basis of race, color, religion and national origin – but <a href="https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1377&context=lawineq">the “sex” category sparked little serious debate</a>. </p>
<p>Early legal and advocacy efforts from <a href="https://doi.org/10.1111/lasr.12155">the National Organization for Women and the Equal Employment Opportunity Commission</a> helped lead the Supreme Court to begin to acknowledge, in the early 1970s, that some forms of discrimination against women were illegal. The first major ruling on this issue was in 1971, <a href="https://supreme.justia.com/cases/federal/us/400/542/">striking down an employer policy of not hiring mothers</a> of preschool-age children, though fathers of children in that age group were welcomed. Sex stereotyping, the court explained, violated the law.</p>
<p>In 1978, the court followed up, ruling that an <a href="https://supreme.justia.com/cases/federal/us/435/702/">employer could not require women to contribute more</a> to pension funds than men, even though women tend to live longer than men.</p>
<h2>The struggle for LGBTQ rights</h2>
<p>Protecting gay, lesbian, and transgender rights was still a ways off. In 1979, the Ninth U.S. Circuit Court of Appeals found that <a href="https://law.justia.com/cases/federal/appellate-courts/F2/608/327/249197/">discrimination on the basis of sexual orientation</a> was not sex discrimination, and therefore was not illegal. That same year, the Fifth Circuit <a href="https://law.resource.org/pub/us/case/reporter/F2/597/597.F2d.936.78-3536.html">dismissed a similar suit</a>. In 1984, the Seventh Circuit likewise found that a person who had been fired after fully transitioning to a woman <a href="http://www.transgenderlaw.org/cases/ulane.htm">could not sue for discrimination</a>.</p>
<p>It wasn’t until 1998 that the Supreme Court acknowledged the existence of LGBTQ issues in the workplace. In <a href="https://www.law.cornell.edu/supct/html/96-568.ZO.html">Oncale v. Sundowner Offshore Services</a>, a male plaintiff claimed that he had faced sexual harassment from his male co-workers. Their employer responded that the law did not prohibit same-sex harassment. A unanimous court, led by Justice Antonin Scalia, disagreed and allowed the suit to proceed.</p>
<p>But that ruling did not make clear whether workers could be fired, demoted or disciplined on the basis of their sexual orientation or gender identity. Congress tried to address the question, and the Senate and the House of Representatives have <a href="https://time.com/5554531/equality-act-lgbt-rights-trump/">separately passed bills recognizing this form of discrimination</a> – but never in the same legislative session, which means it couldn’t become law. And different appeals courts have issued rulings that disagree with each other, producing inconsistent national standards.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A man holds a pride flag in front of the U.S. Supreme Court building after a ruling protecting LGBTQ workers’ rights.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/joseph-fons-holding-a-pride-flag-in-front-of-the-u-s-news-photo/1249824201">Chip Somodevilla/Getty Images</a></span>
</figcaption>
</figure>
<h2>Three cases come to Washington, D.C.</h2>
<p>In fall 2019, the Supreme Court agreed to review three cases about employment discrimination against LGBTQ workers. </p>
<p>Two of the cases, <a href="https://www.scotusblog.com/wp-content/uploads/2018/06/17-1618-opinion-below.pdf">Bostock v. Clayton County</a> and <a href="https://casetext.com/case/zarda-v-altitude-express-inc-1">Altitude Express v. Zarda</a>, involved gay men who claimed they were illegally fired for being gay. The plaintiff in the third case was Aimee Stephens, who <a href="https://casetext.com/case/equal-empt-opportunity-commn-v-rg-gr-harris-funeral-homes-inc-5">lost her job</a> shortly after informing her employer that she intended to transition and would begin representing herself at work as a woman.</p>
<p>The core question in each was how to understand the law’s ban on sex discrimination.</p>
<p>Associate Justice Neil Gorsuch, appointed to the court by President Donald Trump in 2017, wrote the majority opinion in <a href="https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf">the 6-3 ruling</a> that resolved all three cases. Joined by Chief Justice John Roberts and Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, he declared that discrimination against homosexual, bisexual, and transgender people is inherently sex discrimination, and therefore illegal. </p>
<p>Gorsuch’s reasoning was straightforward: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” He imagines two model employees, one man and one woman, arriving at the boss’s holiday party with their wives: If the woman would be fired but not the man, Gorsuch wrote, that is sex discrimination.</p>
<h2>A changing understanding</h2>
<p>Gorsuch is best known as a conservative jurist, concerned about the <a href="https://www.washingtonpost.com/news/the-fix/wp/2017/02/01/neil-gorsuch-antonin-scalia-and-originalism-explained/">specific texts of laws and the original intentions</a> behind them. He rested his interpretation of the Civil Rights Act on the evolution of the law over the years. Since the law’s passage, the Equal Employment Opportunity Commission and federal courts have come to understand a broader definition of sex discrimination, covering motherhood, differential pension programs, pregnancy and sexual harassment. </p>
<p>This history, Gorsuch wrote, signals that the law was meant to be read, and used, in inclusive ways: “refus[ing] enforcement … because the parties before us happened to be unpopular at the time of the law’s passage … would tilt the scales of justice in favor of the strong … and neglect the promise that all persons are entitled to the benefit of the law’s terms.”</p>
<p>He summarized the court’s finding: “An employer who fires an individual merely for being gay or transgender defies the law.”</p>
<h2>Concerns, and questions, remain</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=994&fit=crop&dpr=1 600w, https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=994&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=994&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1249&fit=crop&dpr=1 754w, https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1249&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1249&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Aimee Stephens, a transgender woman whose firing from her job was at the center of the Supreme Court case, died in May, before the ruling in her case was delivered.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Aimee-Stephens-Has-Passed-Away-at-59/7a9a0f359b254479a771de1f6c3597a8/3/0">Patsy Lynch/MediaPunch /IPX</a></span>
</figcaption>
</figure>
<p>Dissents came from Associate Justice Samuel Alito, joined by Clarence Thomas, and from Associate Justice Brett Kavanaugh. </p>
<p>Alito expressed concern that the new ruling “will threaten freedom of religion, freedom of speech, and personal privacy and safety.” He offered specific example concerns, including allowing people with penises to use women’s bathrooms, stacking women’s athletic competitions with athletes with “the strength and size of a male … and students who are taking male hormones,” assigning college roommates based on gender identity rather than sex, requiring religious organizations to hire LGBTQ people, and limiting free speech disapproving of LGBTQ individuals or their relationships.</p>
<p>Alito also feared that the court’s opinion might lay broader groundwork for a constitutional ruling protecting people from discrimination based on sexual orientation and gender identity as strictly as it protects them from sex discrimination. </p>
<p>Many of these concerns may come before federal courts, and ultimately the Supreme Court, in years to come. Gorsuch’s ruling specifically did not decide on whether the results might, in some cases, tread inappropriately on religious liberty. </p>
<p>LGBTQ advocates are celebrating a major acknowledgment of their human rights, though with some sadness: <a href="https://www.nbcnews.com/feature/nbc-out/donald-zarda-man-center-major-gay-rights-case-never-got-n852846">Donald Zarda</a> and <a href="https://www.nytimes.com/2020/05/12/us/aimee-stephens-supreme-court-dead.html">Aimee Stephens</a>, two of the three people at the center of the cases, died before learning of their cases’ resolution. And advocates know many more disputes – and court cases – are yet to come.</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p><img src="https://counter.theconversation.com/content/140903/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Julie Novkov does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Federal law now protects lesbians, gay men and transgender people from being fired or otherwise discriminated against at work. But there are more questions and court cases to come about their rights.Julie Novkov, Professor of Political Science and Women’s, Gender and Sexuality Studies, University at Albany, State University of New YorkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1221752019-08-26T13:39:50Z2019-08-26T13:39:50ZDemocrats turn a venerable legal tool into a declaration of war<figure><img src="https://images.theconversation.com/files/289283/original/file-20190823-170910-17e9swo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court in June</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Supreme-Court/74c6fb9470104c28b37afea7c39d2262/204/0">AP/J. Scott Applewhite</a></span></figcaption></figure><p>Legal briefs, in even the most high profile cases, rarely make headlines. They are <a href="https://legal.thomsonreuters.com/en/insights/learn/how-do-i-write-appellate-brief">technical documents</a> intended to persuade judges in a case about particular points of law. </p>
<p>In American law schools, students now take courses to help them master the arcane genre of brief writing. Their <a href="https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1054&context=sulr">persuasiveness</a> depends on carefully marshaling legal precedents and complex, factual arguments. As a result, they seldom interest anyone outside the legal community. </p>
<p>On Aug. 12, we witnessed a rare exception.</p>
<p>That’s when a friend of the court brief, known as an “amicus” brief, was <a href="https://www.supremecourt.gov/DocketPDF/18/18-280/112010/20190812151259076_18-280bsacSenatorSheldonWhitehouse.pdf">filed in the Supreme Court</a> by five Democratic senators, including one presidential candidate. The senators were Sheldon Whitehouse of Rhode Island, Mazie Hirono of Hawaii, Richard Blumenthal of Connecticut, Richard Durbin of Illinois, and Kirsten Gillibrand of New York. </p>
<p>The brief provoked considerable
<a href="https://www.esquire.com/news-politics/politics/a28761535/sheldon-whitehouse-supreme-court-corruption-guns-climate/">controversy</a> and even led to the filing of a <a href="https://www.judicialwatch.org/uncategorized/judicial-watch-files-complaint-with-rhode-island-supreme-court-against-u-s-senator-sheldon-whitehouse-for-unauthorized-practice-of-law/">legal complaint</a> against Whitehouse, who was its principal author.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/289288/original/file-20190823-170910-1clp2bp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/289288/original/file-20190823-170910-1clp2bp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/289288/original/file-20190823-170910-1clp2bp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/289288/original/file-20190823-170910-1clp2bp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/289288/original/file-20190823-170910-1clp2bp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/289288/original/file-20190823-170910-1clp2bp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/289288/original/file-20190823-170910-1clp2bp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/289288/original/file-20190823-170910-1clp2bp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Sen. Sheldon Whitehouse, the main author of the amicus brief.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Russia-Probe-Barr/7315c890a2c443d4b3c92ae3855e42d0/9/0">AP/J. Scott Applewhite</a></span>
</figcaption>
</figure>
<h2>Gun regulation case</h2>
<p>The amicus brief asked the court to dismiss <a href="https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-city-of-new-york-new-york/">a challenge to a New York City ordinance</a>. The law prohibited licensed gun owners from transporting their guns out of the city, for example, to shooting ranges or second homes. </p>
<p>The challenge was issued by the New York State Rifle and Gun Association, which <a href="https://www.supremecourt.gov/DocketPDF/18/18-280/62499/20180904122332608_NYSRPA%20cert%20petition%209-04-18%20FINAL.pdf">argued</a> that such a prohibition infringed on Second Amendment gun ownership rights as well as the <a href="https://www.law.cornell.edu/wex/commerce_clause">Commerce Clause</a> and the right to travel.</p>
<p>The case seemed destined to become a <a href="https://www.fastcompany.com/90391024/us-supreme-court-2nd-amendment-guns-case-whats-at-stake">vehicle for the court to strictly limit gun regulations</a>. To ward that off, <a href="https://www.nytimes.com/2019/05/27/us/politics/supreme-court-gun-control.html">New York City repealed the offending regulation</a> in June. </p>
<p>Doing so, city officials assumed, would render the case moot. The plaintiffs would no longer have <a href="https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5966&context=ylj">standing to sue</a>, and the case would not result in weaker gun control laws. </p>
<h2>An unusual brief</h2>
<p>The senators supported that view. But their amicus brief presented little in the way of legal argument. </p>
<p>Instead it offered a broad and unprecedented indictment of the court’s conservative majority. </p>
<p>It accused the <a href="https://ballotpedia.org/Federal_judicial_appointments_by_president">five justices who were appointed by Republican presidents</a> – Samuel Alito, Neil Gorsuch, Brett Kavanaugh, John Roberts and Clarence Thomas – of pursuing a “political project” and being in league with the National Rifle Association and other pro-gun groups seeking to <a href="https://www.usatoday.com/story/news/politics/2019/05/22/nra-gun-rights-groups-seek-second-amendment-win-conservative-supreme-court/3685651002/">radically expand gun owners’ protections provided by the Second Amendment</a>. </p>
<p>The petitioners’ “effort did not emerge from a vacuum,” the brief alleged. “The National Rifle Association (NRA), promoted the confirmation (and perhaps selection) of nominees to this Court who, it believed, would ‘break the tie’ in Second Amendment cases. … This backdrop no doubt encourages petitioners’ brazen confidence that this Court will be a partner in their ‘project.’”</p>
<p>The brief was particularly harsh on Justice Kavanaugh, whose <a href="https://www.nraila.org/articles/20180807/nra-ila-launches-major-advertising-campaign-urging-confirmation-of-judge-brett-kavanaugh">confirmation was aggressively pursued by the NRA</a>. And it was blunt in documenting the alleged partisanship of the conservative justices. It quoted an NRA ad supporting Kavanaugh’s confirmation: “‘Four liberal justices oppose your right to self-defense. … Four justices support your right to self-defense. President Trump chose Brett Kavanaugh to break the tie. Your right to self-defense depends on this vote.’” </p>
<p>Pointing out the increasingly <a href="https://home.gwu.edu/%7Ebartels/Bartels%20Chapter%20-%20Polarization%20Volume%20FINAL.pdf">polarized nature of the Supreme Court</a> is standard fare in scholarly commentary. </p>
<p>Nevertheless, as someone who teaches and <a href="https://global.oup.com/ushe/product/the-social-organization-of-law-9780195330342?cc=us&lang=en&">writes about American law and courts</a> and knows the traditions and styles of brief writing, I was surprised by what the senators wrote. The <a href="https://www.wsj.com/articles/senators-file-an-enemy-of-the-court-brief-11565911608">Wall Street Journal got it right</a> when it called it an “enemy of the court brief.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/289289/original/file-20190823-170935-2ufmee.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/289289/original/file-20190823-170935-2ufmee.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/289289/original/file-20190823-170935-2ufmee.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/289289/original/file-20190823-170935-2ufmee.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/289289/original/file-20190823-170935-2ufmee.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/289289/original/file-20190823-170935-2ufmee.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/289289/original/file-20190823-170935-2ufmee.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/289289/original/file-20190823-170935-2ufmee.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Associate Justices Neil Gorsuch and Brett Kavanaugh, two of the justices targeted in the amicus brief.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/State-of-Union/c31d2587539a472195a23d113ba0f114/11/0">Doug Mills/The New York Times via AP, Pool</a></span>
</figcaption>
</figure>
<h2>A brief’s history</h2>
<p>Some legal scholars trace friend of the court briefs back to <a href="https://www.jstor.org/stable/pdf/24870502.pdf?refreqid=excelsior%3A573fd67b6d0cc3cc49fadaa7b440ca2a&seq=1">Roman law</a>. Others argue that they originated in the <a href="https://pdfs.semanticscholar.org/4f06/44147fde6850a9e6711c926dec92eb421622.pdf">English common law</a>.</p>
<p>Whatever their origins, there is no dispute about the fact that amicus briefs have been a longstanding part of Anglo American legal practice. Although filed by <a href="http://nomodos-ilcantoredelleleggi.it/2017/02/20/the-common-law-roots-of-amicus-curiae/">many different kinds of parties</a>, they have been useful vehicles for the public to make its views known to judges.</p>
<p>Today, in the United States such briefs allow interested parties, who are not themselves litigants, to bring to court
“<a href="https://www.law.cornell.edu/rules/supct/rule_37">relevant matter not already brought to its attention by the parties</a>.” For example, in 2013, the American Psychological Association submitted a <a href="https://www.apa.org/about/offices/ogc/amicus/fisher">brief</a> in an important affirmative action case that offered scientific evidence about the educational benefits associated with campus diversity. </p>
<p>Amicus briefs are a <a href="https://www.jstor.org/stable/pdf/3053362.pdf?refreqid=excelsior%3A214a9ae0c58fa3e6e87e63def50b485f&seq=1#page_scan_tab_contents">growing feature of Supreme Court litigation</a>. A <a href="http://www.virginialawreview.org/sites/virginialawreview.org/files/Larsen%26Devins_Online.pdf">study by two law professors</a> found that “submissions at the Supreme Court have increased 800 percent since 1954 and 95 percent between 1995 and 2015.”</p>
<p>In addition, a story on the Columbia Law School’s website says that <a href="https://www.law.columbia.edu/news/2019/01/supreme-court-amicus-curiae-briefs">in the Supreme Court’s 2017–2018 term</a>, “Amicus curiae briefs were filed in every one of the 63 argued cases, averaging just over 14 briefs per case, a new record.” </p>
<h2>Do they matter?</h2>
<p>Harvard law professor Noah Feldman <a href="https://www.bloomberg.com/opinion/articles/2016-03-09/the-dark-side-of-those-amicus-briefs-at-the-supreme-court">contends</a> that those briefs do not help the court and impose substantial burdens on the justice’s clerks, who are responsible for reading and digesting them. Another law professor, Philip Kurland, <a href="https://www.jstor.org/stable/pdf/1599505.pdf?refreqid=excelsior%3Aefbb272aa9fbd99fbf7f05c070f8c3c2&seq=1#page_scan_tab_contents">once called the filing of amicus briefs</a> “a waste of time, effort, and money.”</p>
<p>Yet those briefs have been important to groups, like the <a href="https://www.naacp.org/naacp-legal-team/amicus-briefs-archives/">NAACP</a>, seeking to expand civil rights protections. One of the NAACP’s most influential briefs was filed by future Justice <a href="https://www.npr.org/2003/12/08/1535826/thurgood-marshall-and-brown-v-board-of-ed">Thurgood Marshall</a> in <a href="https://www.law.cornell.edu/supremecourt/text/347/483">Brown v. Board of Education</a>. It helped the court understand the pernicious effects of segregation on black school children. </p>
<p>Friend of the court briefs also are often <a href="https://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780195372144.001.0001/acprof-9780195372144">submitted by well-financed interest groups or organizations</a> seeking to shape court decisions. </p>
<p>Amicus briefs <a href="https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3356&context=penn_law_review">are cited frequently in Supreme Court opinions</a>. In the 2017-18 term, <a href="https://www.arnoldporter.com/-/media/files/perspectives/publications/2018/10/supreme-court-amicus-curiae-review.pdf">justices did so</a> in 23 majority, 21 dissenting, and five concurring opinions. </p>
<h2>‘Declaration of war’</h2>
<p>Neither Thurgood Marshall, nor those routinely filing friend of the court briefs, have used them to accuse the court of providing “a friendly audience” for a particular interest group. </p>
<p>The directness and harshness of the rhetoric in the senators’ brief may be a reflection of <a href="https://www.nytimes.com/2018/06/20/us/politics/trump-language-immigration.html">the temper of America’s legal and political culture in the age of Donald Trump</a>. Or, it may be a logical next step in a <a href="https://www.npr.org/sections/itsallpolitics/2012/12/19/167645600/robert-borks-supreme-court-nomination-changed-everything-maybe-forever">war over the Supreme Court’s direction</a> that began with the Senate’s 1987 rejection of the nomination of conservative hero Robert Bork.</p>
<p>Whatever its causes, the brief signals the transformation of a venerable legal tool into a weapon of Democratic partisan combat. This weapon is aimed at a court likely to be controlled for the foreseeable future by Republican-appointed justices.</p>
<p>The brief concludes with the warning that the court must “heal itself” lest it be “restructured.” As one progressive group aptly <a href="https://thinkprogress.org/five-democratic-senators-just-declared-all-out-war-on-the-supreme-court-7601fed719e6/">noted</a>, that warning is less the work of a legal document than “a declaration of war.”</p>
<p>[ <em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/122175/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Austin Sarat does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Was a friend-of-the-court brief filed with the Supreme Court by five Democratic senators a legal argument – or a political threat?Austin Sarat, Professor of Jurisprudence and Political Science, Amherst CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1169352019-05-16T16:50:14Z2019-05-16T16:50:14ZHow the US Constitution failed to keep Donald Trump in line<figure><img src="https://images.theconversation.com/files/274931/original/file-20190516-69204-1u8iujl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/january-18-2016-vector-illustration-character-445644163">Shutterstock</a></span></figcaption></figure><p>In the run up to the 2016 presidential election, Donald Trump’s opponents could often be seen <a href="https://www.npr.org/2016/08/04/488738033/protesters-wield-pocket-constitutions-at-trump-rally">waving copies</a> of the <a href="https://www.whitehouse.gov/about-the-white-house/the-constitution/">US Constitution</a>, reminding him of the words of America’s founding fathers that, in their view, would constrain his excessive impulses.</p>
<p>These days it would not be surprising to see Trump taunting his opponents with the Constitution. Although <a href="https://www.ft.com/content/8522481a-fdf4-11e8-ac00-57a2a826423e">some would argue</a> it has curbed his worst excesses, this widely venerated document has actually enabled him. After all, it began by handing him the presidency.</p>
<p>Drafted in 1787 and ratified the following year, the US Constitution was supposed to provide an enhanced form of protection for citizens against any kind of governmental abuse. Entrenched as higher or “fundamental” law meant that ideals such as equality, democracy and a commitment to “we the people” were to take precedence. But as this mystical document aged and the American people became too polarised to update it, the flaws in their founding settlement have become more routinely exposed.</p>
<p>Because of America’s questionable <a href="https://www.archives.gov/federal-register/electoral-college/about.html">electoral college system</a>, which allocates each state a certain number of “electors” but whose weightings remain <a href="https://theconversation.com/whose-votes-count-the-least-in-the-electoral-college-74280">unequal</a>, a candidate who lost by almost 3m votes became president. If anything, the 2016 election planted the seed for the way Trump has behaved throughout his presidency, as formal encounters with provisions in the US Constitution have ultimately tipped in his favour.</p>
<h2>Trump’s victories</h2>
<p>Although a few judicial rebukes suggest that the Constitution may be reining in Trump on some issues, such as the <a href="https://www.nytimes.com/2018/11/19/business/media/jim-acosta-press-pass-cnn.html">return of a CNN reporter’s press credentials</a> and <a href="https://thehill.com/policy/healthcare/436543-trumps-health-overhaul-efforts-hit-legal-roadblocks">recent decisions</a> against requirements for <a href="https://www.medicaid.gov/">Medicaid</a> (the government’s healthcare insurance programme), these are relatively minor victories, and there is little reason to think that the venerated Constitution is itself the decisive factor, as opposed to just federal statutory law.</p>
<p>In formal encounters on big ticket items, however, Trump has largely come out on top. The Muslim travel ban that many roundly mocked during the presidential campaign as unconstitutional was <a href="https://www.scotusblog.com/case-files/cases/trump-v-hawaii-3/">eventually deemed constitutional</a> by the Supreme Court. President Trump didn’t need go to <a href="https://www.congress.gov/">Congress</a> to get this done, though if he’d tried to, nothing would have passed because of political opposition. And yet, because the robust American judiciary remains heavily involved in determining what is or isn’t constitutional, the ban ultimately passed.</p>
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<p>The <a href="https://www.senate.gov/reference/glossary_term/advice_and_consent.htm">“advice and consent”</a> of the <a href="https://www.senate.gov/">Senate</a> is another example of the American Constitution’s intricate separation of powers, as the Senate must approve all nominations for executive and judicial posts. The president has encountered little trouble under this clause because the Senate currently retains a Republican majority. Trump’s two most significant nominations, those for the US Supreme Court, eventually passed the vetting process, even though both confronted uniquely complex situations.</p>
<p><a href="http://time.com/4730746/neil-gorsuch-confirmed-supreme-court-year/">Neil Gorsuch’s</a> nomination was only possible because, after the death of Justice Antonin Scalia, Republicans refused to even hold a hearing on Barack Obama’s nominee, Merrick Garland. The Constitution does not address how quickly hearings need to be held after nomination. Gorsuch comfortably passed his Senate vote.</p>
<p>Trump’s second and extremely controversial pick for the Supreme Court, <a href="https://edition.cnn.com/2019/05/03/politics/brett-kavanaugh-christine-blasey-ford-stephen-moore-supreme-court/index.html">Brett Kavanaugh</a>, also passed through the proper constitutional hurdles before eventually being placed on the Court.</p>
<p>Recently, Republicans went “<a href="https://www.nytimes.com/2019/04/03/us/politics/senate-republicans-nuclear-option.html">nuclear</a>” to eliminate long-established rules on judicial and administrative nominations, changing the time for debate from 30 hours to two hours. This will allow a raft of Trump’s lower judicial appointments to proceed, and is yet another example of the Constitution’s “advice and consent” provision being manipulated into favouring the president.</p>
<h2>The real push back</h2>
<p>Where Trump has met resistance has largely been outside of the provisions of the Constitution. Mechanisms associated with political institutions have been the most effective. For example, the Constitution says nothing about the use of <a href="https://www.history.com/topics/us-government/history-of-the-filibuster">filibusters</a> – an attempt to block or delay Senate action on an issue or bill. This rule states that 60 votes are needed in the Senate before debate can be closed on a matter.</p>
<p>President Trump was unable to fulfil his <a href="https://www.ecnmy.org/engage/the-story-behind-trumps-wall-with-mexico-explained/?gclid=EAIaIQobChMIv_KUzrSd4gIVAgbTCh0HOAOGEAAYASAAEgLcMvD_BwE">border wall</a> promise during his first two years in office primarily because he could not get any funding measure through Congress. At one point he even suggested <a href="http://www.msnbc.com/rachel-maddow-show/get-wall-funding-trump-calls-the-elimination-filibusters">completely doing away</a> with Senate filibusters, but the fact is there was little appetite for his border wall among his own party. </p>
<p>Eventually, when Trump got so frustrated with the normal political channels over his wall that he declared a national emergency, both the <a href="https://www.theweek.co.uk/97586/the-senate-and-us-house-of-representatives-explained">House of Representatives</a> and the <a href="https://www.nytimes.com/2019/03/14/us/politics/senate-vote-trump-national-emergency.html">Senate</a> passed resolutions condemning this action. In fact, the National Emergencies Act 1976 initially put Congressional restraints on any presidential emergency declaration, but the US Supreme Court did away with these in a 1983 <a href="https://www.law.cornell.edu/supremecourt/text/462/919">judgment</a>. This presents another example of powerful US courts determining what is or isn’t constitutional, ultimately handing the president more power while decreasing Congressional power.</p>
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<p>The Constitution also fails to mention government shutdowns or the appointment of special counsel. The <a href="https://www.businessinsider.com/history-of-government-shutdowns-in-congress-2018-1?r=US&IR=T">longest-ever US government shutdown</a> – 35 days – came near the end of Trump’s first two years in the job, and was ultimately viewed as a significant loss for him.</p>
<p>Robert Mueller’s investigation into Russian interference in the presidential election has produced convictions for many of those associated with president Trump, including his personal “fixer” attorney <a href="http://time.com/5583649/michael-cohen-goes-prison/">Michael Cohen</a> and his former presidential campaign chairman, <a href="https://www.theguardian.com/us-news/2019/mar/13/paul-manafort-second-sentencing-hearing-donald-trump">Paul Manafort</a>.</p>
<p>The redacted <a href="https://edition.cnn.com/2019/04/18/politics/full-mueller-report-pdf/index.html">Mueller Report</a> was released in early May, providing an abundance of new headaches for the administration. But given his previous (positive) encounters with the Constitution, president Trump now appears to be <a href="https://www.nytimes.com/2019/05/09/us/politics/trump-democrats-impeachment.html">daring the Democrats</a> to impeach him. </p>
<p>Statutory law has also played an important part in restraining the president. As Atlantic journalist David Graham recently <a href="https://www.theatlantic.com/ideas/archive/2019/04/law-only-constraint-trump/587266/">pointed out</a>, the reluctance of the president’s advisers to break federal law is one of the most significant constraints on the Trump administration. </p>
<p>Any form of enhanced protection for America and its citizens by the US Constitution has been overblown. Neither its legals mechanisms, nor those of the Supreme Court have managed to keep Donald Trump in check – that has fallen to politics, political institutions and the presence of federal law.</p><img src="https://counter.theconversation.com/content/116935/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brian Christopher Jones does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many were confident the US Constitution was robust enough to check Donald Trump’s worst excesses, but the real push back has come from elsewhere.Brian Christopher Jones, Lecturer in Law, University of DundeeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1063042018-11-20T11:35:18Z2018-11-20T11:35:18ZKavanaugh’s impact on the Supreme Court and the country may not be as profound as predicted<figure><img src="https://images.theconversation.com/files/246281/original/file-20181119-76137-191b9lt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Supreme Court justices stood with Brett Kavanaugh, his wife Ashley, President Donald Trump and first lady Melania Trump on the day of Kavanaugh's investiture.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Supreme-Court-Kavanaugh/acc1c0cca2074ea89b77fcd57b2cac2c/20/0">AP/Supreme Court provided</a></span></figcaption></figure><p>Brett Kavanaugh’s appointment to the Supreme Court <a href="https://www.nytimes.com/2018/09/02/us/politics/judge-kavanaugh-supreme-court-justices.html">has been widely predicted to plunge the court</a> – and American law with it – into a new conservative era. </p>
<p><a href="https://www.wcjb.com/content/news/Supreme-Court-ends-term-without-retirement-486696331.html">The main areas of concern include</a> reproductive rights, LGBT rights, affirmative action, environmental regulations, criminal punishments, gun rights and voting rights. </p>
<p>But these prognoses fail to heed some fundamental distinctions among the decisions of the Supreme Court, and may create a mistaken impression of the court’s power and the inevitable trajectory of American law. </p>
<p>Simply put, Supreme Court rulings are often not the last word on a matter.</p>
<h2>What the court does</h2>
<p>The U.S. Supreme Court performs two primary tasks: <a href="https://www.supremecourt.gov/about/constitutional.aspx">interpretation of federal laws and interpretation of the federal Constitution</a>. </p>
<p>The Supreme Court has the final authority to determine what laws enacted by Congress require. But its determinations can always be reversed by Congress, which has the power to amend or repeal the laws it has passed. </p>
<p>For example: In 1964 Congress gave employees the right to sue their employers for discrimination based on gender. In 2007, a 5-4 conservative majority read that law in a way that <a href="https://www.oyez.org/cases/2006/05-1074">limited the available compensation for women suing for equal pay</a>. Within two years Congress responded by <a href="https://www.congress.gov/bill/111th-congress/senate-bill/181">increasing the available compensation</a>. </p>
<p>The Supreme Court also has final authority to determine what the U.S. Constitution requires. It does so by deciding cases that challenge the constitutionality of federal and state laws. Generally speaking, the court either declares the law in question to be constitutional or unconstitutional. </p>
<p>When the court declares that a law is constitutional, it effectively steps out of the way of decisions made by other branches of government. But those other branches can always change their decisions. </p>
<p>For example, in 1990 the court ruled that Oregon’s prohibition of the use of a hallucinogenic in religious Native American ceremonies was constitutional. The ruling allowed the Oregon legislature to <a href="https://www.law.cornell.edu/supremecourt/text/494/872">criminalize such use</a>. </p>
<p>But the Oregon legislature remained free to amend or repeal the law – which it promptly did. Within a year of the Supreme Court decision, the Oregon legislature amended its law to <a href="https://www.oregonlaws.org/ors/475.752">allow the consumption of peyote in religious ceremonies</a>. </p>
<p>Moreover, when the Supreme Court declares that a state law is constitutional under the U.S. Constitution, state courts are free to decide that the law is unconstitutional under their own constitutions. </p>
<p>For example: After the Supreme Court decided that a <a href="https://www.law.cornell.edu/supremecourt/text/478/186">Georgia law criminalizing sodomy was constitutional</a>, the Georgia courts declared the law <a href="https://www.courtlistener.com/opinion/1338934/powell-v-state/">unconstitutional under the Georgia Constitution</a>. </p>
<p>State constitutions can provide more rights and liberties than those protected by the federal Constitution. <a href="https://ballotpedia.org/Amending_state_constitutions">All 50 states have their own constitutions</a> which are often easy to amend. And most state judges – who have the final authority over state constitutions – <a href="https://www.brennancenter.org/rethinking-judicial-selection/significant-figures">are elected for office</a>, making them responsive to public opinion. </p>
<h2>Decisions that cannot be undone</h2>
<p>Things are different when the Supreme Court declares that a law violates the U.S. Constitution. </p>
<p>When the Supreme Court declares a law unconstitutional, its ruling is the final word. Congress, state legislatures or state courts cannot make such Supreme Court decisions go away. These decisions can be <a href="https://www.supremecourt.gov/about/constitutional.aspx">overridden only by a constitutional amendment</a> – which, at the federal level, is almost impossible to attain. There have been only <a href="https://www.usconstitution.net/constamrat.html">17 amendments in the past 223</a> years. </p>
<p>For example, when the court declared in 2003 that a <a href="https://www.law.cornell.edu/supct/html/02-102.ZO.html">Texas statute making sodomy a crime was unconstitutional</a>, neither the Texas legislature, nor the Texas courts, nor Congress could change or repeal that decision. </p>
<p>Heeding this distinction – between Supreme Court decisions that are the final word on an issue and those that can be undone – is important for a fuller appraisal of Kavanaugh’s expected impact.</p>
<h2>Recourse in some decisions</h2>
<p>Many of the concerns over Kavanaugh’s appointment are about potential decisions that can be reversed by the democratic process. </p>
<p>Take environmental regulations. </p>
<p>Worries about an anti-environmentalist Supreme Court are largely concerns about the court’s statutory interpretation. That means that decisions in this area can mostly be amended or overruled through the legislative process. </p>
<p>For instance, one central environmentalist concern with Kavanaugh is that the court will cease to defer to the decisions of the Environmental Protection Agency. But such rulings, if they occur, would be based on <a href="http://www.scotusblog.com/2018/07/kavanaugh-and-the-environment/">the court’s interpretation of federal laws</a>. And these laws could always be amended by Congress. </p>
<p>Or take abortion: Those who <a href="https://www.vox.com/2018/9/7/17818458/brett-kavanaugh-supreme-court-nominee-abortion-confirmation">fear Kavanaugh’s impact on abortion rights</a> are almost exclusively worried that the court would uphold state laws that restrict access to abortions – like the 2013 Texas law that caused the <a href="https://www.oyez.org/cases/2015/15-274">closure of several abortion clinics in that state</a>. </p>
<p>But such Supreme Court rulings can be countered at the ballot box, where voters could install state <a href="https://www.reproductiverights.org/project/using-state-constitutions-to-protect-reproductive-rights">lawmakers or judges who would expand abortion rights</a>.</p>
<p>There is an important qualification to this general rule. While Supreme Court decisions that declare laws to be constitutional can be made irrelevant by legislatures or by state courts, things are trickier when it comes to laws that distort our democracy - like onerous voter ID requirements or gerrymandered voting districts. </p>
<p>After all, such decisions impact the composition of the very institutions that could remedy the issue. Officials elected thanks to voter suppression or political gerrymandering are not likely to repeal such measures. Thus, Supreme Court decisions that uphold antidemocratic measures should also count as potentially irremediable. </p>
<h2>No significant difference</h2>
<p>The Supreme Court wields its most significant and enduring power when it makes decisions that cannot be remedied by the democratic process. So it makes sense to pay particular attention to those kinds of decisions when examining the significance of Kavanaugh’s appointment. </p>
<p><a href="https://www.nytimes.com/2018/09/02/us/politics/judge-kavanaugh-supreme-court-justices.html">Liberals’ concerns over the court’s irremediable decisions</a> are primarily about gun control, affirmative action, religious exemptions for LGBTQ anti-discrimination requirements, campaign finance regulations, and upholding laws that distort our democracy. </p>
<p>But when it comes to these areas, it is hard to see how Kavanaugh could make a significant difference. The major turns to the right have already occurred. </p>
<p>Since John Roberts became chief justice, the Supreme Court had already invalidated gun controls by <a href="https://www.oyez.org/cases/2007/07-290">revolutionizing Second Amendment doctrine</a>. It had already <a href="https://www.oyez.org/cases/2015/15-474">invalidated numerous campaign finance regulations</a> and extended constitutional protections to what <a href="https://www.oyez.org/cases/2008/08-205">many regard as political corruption</a>; it had already invalidated the enforcement of an <a href="https://www.oyez.org/cases/2017/16-111">LGBT anti-discrimination measure</a> on grounds of religious freedom; and it already invalidated <a href="https://www.oyez.org/cases/2006/05-908">affirmative action admission programs at K-12 schools</a>. </p>
<p>As for laws that distort our democracy: The Roberts Court had already upheld a voter ID law described as <a href="https://www.oyez.org/cases/2007/07-21">voter suppression</a>; upheld Ohio’s aggressive <a href="https://www.oyez.org/cases/2017/16-980">purges of its voter rolls</a>; and had never met a case of political gerrymandering – which effectively imposes a minority rule – that it did not find constitutional. </p>
<p>The Roberts Court was already the <a href="https://www.nytimes.com/2010/07/25/us/25roberts.html">most conservative Supreme Court in many decades</a> – even before Kavanaugh’s appointment, and also before Neil Gorsuch’s. It is worth remembering, though, that the American public is not without recourse. Many of the court’s past and future decisions can be undone at the ballot box.</p><img src="https://counter.theconversation.com/content/106304/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ofer Raban does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With Brett Kavanaugh on the Supreme Court, many predict that the court will move to the right on issues from abortion to gun rights. But Supreme Court rulings are often not the last word on a matter.Ofer Raban, Professor of Constitutional Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1044512018-10-09T10:44:23Z2018-10-09T10:44:23ZJustice Kavanaugh is a threat to Roe v. Wade – but not the only one<figure><img src="https://images.theconversation.com/files/239838/original/file-20181009-72106-1h1yjmt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Donald Trump with Supreme Court Justice Brett Kavanaugh at his swearing in. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Supreme-Court/ad8eacfd5b3540399f3d96e7cf7f50c7/8/0">AP Photo/Susan Walsh</a></span></figcaption></figure><p>With the confirmation of Brett Kavanaugh to the U.S. Supreme Court, some are wondering: Will Roe v. Wade, the landmark case recognizing a woman’s right to choose to terminate a pregnancy, continue to be the law of the land? </p>
<p>Kavanaugh told Sen. Susan Collins, a <a href="https://www.cnn.com/2018/10/05/politics/kavanaugh-nomination-vote-friday/index.html">key vote</a> to approve his nomination, that he viewed Roe v. Wade as <a href="https://www.politico.com/story/2018/08/21/brett-kavanaugh-roe-v-wade-susan-collins-790632">“settled law</a>.” But from my vantage point as <a href="https://scholar.google.com/citations?user=uAaBGrMAAAAJ&hl=en&oi=sra">a constitutional law professor</a> who also litigates reproductive rights cases, the future of Roe v. Wade looks more tenuous than it ever has.</p>
<h2>A new vacancy, a new court</h2>
<p>Replacing Justice Anthony Kennedy, <a href="https://www.nytimes.com/2018/06/27/us/politics/anthony-kennedy-retire-supreme-court.html">who retired this summer</a>, with Kavanaugh, who was a deeply conservative judge during his time on the D.C. Circuit Court of Appeals, will fundamentally remake constitutional doctrine in this area.</p>
<p>In 1992, Kennedy’s swing vote preserved Roe v. Wade in a 5-4 decision known as <a href="https://www.oyez.org/cases/1991/91-744">Planned Parenthood v. Casey</a>. More recently, in the 2016 case of <a href="https://www.oyez.org/cases/2015/15-274">Whole Woman’s Health v. Hellerstedt</a>, Justice Kennedy’s vote was critical to the five-justice majority, which again affirmed the right to choose as fundamental. </p>
<p>But, despite what he told Collins, Kavanaugh has expressed hostility to Roe. </p>
<p>In a <a href="https://www.aei.org/wp-content/uploads/2017/08/from-the-bench.pdf">public speech last year</a>, Kavanaugh praised the late Chief Justice William Rehnquist’s dissent from the Roe decision. He also <a href="http://www.scotusblog.com/wp-content/uploads/2017/11/17-654-opinion-below.pdf">voted against an undocumented minor</a> in government custody who wanted an abortion, complaining that the judges who voted in favor of the young woman were granting a right to “abortion on demand” and arguing that the woman should have to delay the procedure for a few weeks until a family could be found to sponsor her. </p>
<p>This record suggests Kavanaugh could provide a critical fifth vote to the anti-Roe wing of the court, joining justices Clarence Thomas, John Roberts, Samuel Alito and Neil Gorsuch. </p>
<h2>What happens if Roe is overruled?</h2>
<p>If the Supreme Court votes to overrule Roe, it wouldn’t immediately make abortion illegal throughout the country. That would probably require five justices to decide that embryos and fetuses are “persons” entitled to constitutional protection. No justice – not even the strongly anti-abortion Justice Antonin Scalia – has ever taken such an extreme view.</p>
<p>Instead, the court would probably say that states are allowed to restrict abortion however they see fit. The court may rule that states can choose to protect “potential life,” and that the woman’s right to choose whether and when to become a parent is not strong enough to overcome the state’s interest in protecting fetuses.</p>
<p>That means some states would probably outlaw abortion altogether, perhaps with narrow exceptions in cases of rape or incest, or when the woman’s life is in danger. Other states may place few or no restrictions on abortion – perhaps making it illegal only once the fetus is viable, typically after <a href="https://www.theatlantic.com/politics/archive/2015/01/a-look-at-late-term-abortion-restrictions-state-by-state/448098/">the 22nd week of pregnancy</a>.</p>
<h2>A challenge in the states</h2>
<p>Numerous states stand ready to mount a challenge to Roe. </p>
<p>In 2018 alone, seven states have introduced or passed so-called <a href="https://rewire.news/legislative-tracker/law-topic/heartbeat-bans/">“heartbeat bills”</a> that ban abortion as early as six weeks of pregnancy. These laws are bold assaults on Roe’s central premise: that states cannot ban abortions early in pregnancy. </p>
<p>A challenge to a “heartbeat bill” could bring Roe before the court, but in reality, a challenge to a law like that isn’t even necessary. In fact, almost any abortion case, including several that are already pending, could become a vehicle for overturning Roe if the justice choose to hear it. The Supreme Court gets to pick and choose the cases it hears and needs only four justices to vote to hear a case. That means it might decide to weigh in on abortion rights as soon as this fall.</p>
<p>For example, the newly composed Supreme Court could decide to take up the constitutionality of laws in Ohio or Indiana banning abortions sought for particular reasons, such as fetal anomaly. Both laws have been <a href="https://www.usatoday.com/story/news/politics/2018/03/15/down-syndrome-abortion-ban-blocked/427408002/">blocked by federal courts</a>, and either could still be appealed to the Supreme Court. If the court decides to hear one of those cases, it could uphold the laws on the grounds that Roe was incorrect and a new, more relaxed legal standard should apply to abortion restrictions. </p>
<p>What’s more, <a href="https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe">nine states</a>, including Wisconsin and West Virginia, actually still have pre-Roe abortion bans on the books. These laws weren’t being enforced as long as Roe was the law of the land. If Roe is overturned, it’s possible that prosecutors in those states would try to bring criminal charges against doctors performing abortions, without even waiting for the legislature to pass a new law banning abortion. </p>
<p><a href="https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe">Four additional states</a> – North Dakota, South Dakota, Louisiana and Mississippi – have passed so-called “trigger laws” providing that abortion will become illegal the moment Roe is overruled. </p>
<p>Even in the absence of laws such as these, though, many state legislatures won’t hesitate to enact new abortion bans immediately. In fact, the Center for Reproductive Rights considers only <a href="https://www.reproductiverights.org/what-if-roe-fell">21 states to be relatively low-risk</a> for passing new abortion bans if Roe fell. </p>
<p>Of these 21, a few states are expected to take an active role in protecting abortion access in the absence of Roe. This would likely mean that women in Massachusetts would live under a permissive set of laws, while women in Mississippi would face more restrictive ones.</p>
<h2>The role of Roberts</h2>
<p>Of course, it’s possible that Roe will live another day. </p>
<p>With Kavanaugh seated, Chief Justice John Roberts will be at the ideological center of the court, with four conservatives – Thomas, Alito, Gorsuch and Kavanaugh – all to the right of him. Roberts is therefore likely to become the swing vote. </p>
<p>Roberts is a <a href="https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1073&context=faculty_publications">famously careful jurist</a> who often avoids overruling precedent by issuing a narrow opinion instead. He is also likely concerned about his legacy. He might not want the Roberts Court to be the court that overruled Roe and took away the right to choose. He might be concerned about the backlash among members of the public, who have long assumed that Roe was here to stay and who <a href="http://www.pewresearch.org/fact-tank/2017/01/03/about-seven-in-ten-americans-oppose-overturning-roe-v-wade/">favor keeping it by more than a two-to-one margin</a>.</p>
<p>Then again, many justices have affirmed their devotion to precedent, only to later overturn it. Both Roberts and Gorsuch spoke favorably about following precedent during their Senate confirmation hearings. Yet both justices voted in June 2018 to overturn a unanimous Supreme Court case protecting the rights of unions – <a href="https://www.oyez.org/cases/1976/75-1153">Abood v. Detroit Board of Education</a> – that had stood undisturbed for more than 40 years. </p>
<p>Still, it’s important not to lose sight of the bigger picture. </p>
<p>Whether or not Roe goes, with Kavanaugh on the bench the Supreme Court is likely to shift far to the right on reproductive rights — potentially affecting not just abortion, but access to contraception as well. One sign of this shift is Kavanaugh’s record <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/425C0AE29F10AFD785257E4B00767BF5/$file/13-5368.pdf">of siding with employers seeking to block employees’ access to birth control</a> under the ACA. </p>
<p>And, even if Roe isn’t overturned, it may continue to exist in name only, as the Supreme Court is likely to uphold every sort of restriction short of an outright abortion ban. </p>
<p>In short, there are many possible paths for Roe v. Wade in the future, and significant questions remain. One thing is almost certain, though – the court will continue to erode the power of Roe.</p>
<p><em>This story has been updated from <a href="https://theconversation.com/will-the-supreme-court-overturn-roe-v-wade-and-if-it-does-what-happens-to-abortion-rights-99248">a version</a> published on Aug. 2, 2018. <a href="https://theconversation.com/could-roe-v-wade-be-overturned-73235">An earlier version</a> appeared on March 19, 2017.</em></p><img src="https://counter.theconversation.com/content/104451/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>B. Jessie Hill receives funding from an anonymous foundation that supports research on reproductive health care. She is a volunteer attorney for the ACLU of Ohio and litigates challenges to abortion restrictions.</span></em></p>Many states are also eroding a woman’s right to access abortions.B. Jessie Hill, Associate Dean for Academic Affairs and Judge Ben C. Green Professor of Law, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/991692018-07-03T10:33:48Z2018-07-03T10:33:48ZWill Trump’s Supreme Court justices show independence from him?<figure><img src="https://images.theconversation.com/files/225606/original/file-20180701-117430-1v5346z.jpg?ixlib=rb-1.1.0&rect=38%2C23%2C5105%2C2630&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Trump, Neil Gorsuch and wife Marie Louise and Justice Anthony Kennedy</span> <span class="attribution"><span class="source">AP/Alex Brandon</span></span></figcaption></figure><p>Supreme Court Justice Anthony Kennedy’s retirement has sparked much speculation about the court’s future decisions on <a href="https://www.nytimes.com/2018/06/27/us/politics/anthony-kennedy-career.html?action=click&module=RelatedCoverage&pgtype=Article&region=Footer">abortion and gay rights</a>.</p>
<p>But what about the retirement’s effects on the future of a possible litigant before the court: President Trump himself? </p>
<p><a href="https://www.npr.org/2018/03/03/590616771/trump-and-the-parameters-of-executive-privilege">Several</a> <a href="https://www.usatoday.com/story/opinion/2018/06/05/executive-privilege-may-trump-all-editorials-debates/35730809/">possible</a> <a href="https://www.vox.com/policy-and-politics/2017/7/21/16007934/trump-president-pardon-himself-limits-power-constitution">constitutional</a> crises are brewing over Robert Mueller’s investigation into Russian interference, collusion and obstruction of justice, some of which – such as the president’s power to pardon himself – could raise legal questions that only the Supreme Court can answer. </p>
<p>An aspect of the president’s personality is relevant here. Trump, to use his own words, “<a href="https://www.politico.com/magazine/story/2018/03/06/donald-trump-loyalty-staff-217227">needs loyalty</a>.” It would not be an insult to say Trump <a href="https://www.ft.com/content/3148a4c6-7c51-11e7-9108-edda0bcbc928">views the world in a transactional way</a>. </p>
<p>So with Kennedy’s retirement, the question becomes, what will President Trump expect of his appointee once he’s the one before the Court?</p>
<h2>One good turn…</h2>
<p>President Trump seems to operate under the <a href="https://www.justsecurity.org/41861/loyalty-quid-pro-quo-defining-themes-comeys-conversations-trump/">quid pro quo</a> principle: I do for you and then you do for me. He may thus view favorable votes by his Supreme Court nominees in any future dispute with Mueller as another perk of his power to nominate them. </p>
<p>Trump certainly views protecting the president as part of <a href="http://time.com/5316410/donald-trump-endorsements-loyalty/">his attorney general’s job description</a>. He has repeatedly expressed anger at Attorney General Jeff Sessions’ decision to recuse himself in the Russia investigation, saying that he <a href="https://www.nytimes.com/2018/01/04/us/politics/trump-sessions-russia-mcgahn.html">expected Sessions to protect him</a>.</p>
<p>There’s reason to think Trump views judicial appointments the same way. </p>
<p>As a candidate, Trump said that a <a href="http://thehill.com/blogs/ballot-box/presidential-races/282172-trump-doubles-down-on-judge-attacks-hes-a-mexican-were">Mexican-American judge ruled against</a> him in a lawsuit because he was planning to build a wall on the Mexican border. His reaction demonstrated a belief that <a href="https://blog.harvardlawreview.org/will-the-federal-judiciary-remain-a-check-and-balance-after-trump/">judges often rule on the basis of bias</a>.</p>
<p>Indeed, it seems the only point at which Judge Neil Gorsuch’s confirmation to the Supreme Court was at risk was when <a href="https://www.washingtonpost.com/politics/trump-reportedly-considered-rescinding-gorsuchs-nomination/2017/12/18/ad2b3b68-e1c7-11e7-9eb6-e3c7ecfb4638_story.html?noredirect=on&utm_term=.89d90d09bb48">he criticized President Trump’s statements about the federal judiciary in a meeting with a senator</a>. When Trump got wind of the critique, he was apparently tempted to pull the nomination altogether out of fears <a href="http://nymag.com/daily/intelligencer/2017/12/trump-nixing-gorsuch-wouldve-been-crazier-than-firing-comey.html">Gorsuch would prove himself disloyal</a>, though he declined to do so. </p>
<p>So the president won’t likely be a proponent of judicial independence. But what about the nominee? How can senators and the American public learn if he or she will put the law above loyalty to the president? </p>
<h2>How to find independence</h2>
<p>One place you shouldn’t look for clues about a nominee’s judicial independence are confirmation hearings. They are, almost every serious person agrees, <a href="https://www.washingtonpost.com/powerpost/plenty-of-drama-is-coming-on-the-next-supreme-court-nominee--but-not-in-senate-questioning/2018/06/29/caa8b3e6-7bbe-11e8-aeee-4d04c8ac6158_story.html?noredirect=on&utm_term=.eedf6631f396">a joke</a>. </p>
<p>Apparently, being a Supreme Court Justice is too good a job for nominees to introduce even a modicum of risk to their chances. That means the nominees don’t say anything whatsoever about what they really think. </p>
<iframe width="100%" height="330" src="https://www.c-span.org/video/standalone/?c4738401/elena-kagan-supreme-court-confirmation-hearing" allowfullscreen="allowfullscreen" frameborder="0"></iframe>
<p>For example, 15 years before her own nomination to the court, Justice Elena Kagan <a href="https://www.nytimes.com/2010/05/12/us/politics/12court.html">argued in a law review article</a> that confirmation hearings were a “farce.” She wrote that “it is an embarrassment that senators do not insist” that a nominee “disclose their views on important legal issues.” </p>
<p>During <a href="https://www.congress.gov/111/chrg/shrg67622/CHRG-111shrg67622.htm">her own Senate hearings</a>, when Sen. Herb Kohl – a Democrat – offered Kagan the chance to disclose her own views, she demurred, declining to answer the very questions she had said should be <a href="https://www.c-span.org/video/?294264-2/kagan-confirmation-hearing-day-2-part-1">put before nominees</a>. </p>
<p>In response to this kabuki dance, Sen. Kohl – a member of the same party as the nominating administration – laughed. He muttered an incredulous “My, oh my,” and moved on to <a href="https://www.congress.gov/111/chrg/shrg67622/CHRG-111shrg67622.htm">antitrust-related</a> questions that didn’t earn any real answers either. Despite Kagan’s previously stated views, once she was a Supreme Court nominee – and had the chance to choose substance over farce – she took farce. Other recent nomination hearings, including <a href="https://www.sfgate.com/politics/article/Alito-offers-few-hints-on-how-he-would-rule-2524302.php">Justice Samuel Alito’s</a> and <a href="https://www.yahoo.com/news/gorsuch-frustrates-democrats-at-confirmation-hearing-015048427.html">Justice Gorsuch’s</a>, were similarly substance-free.</p>
<p>So you should feel free to ignore questions and answers during the confirmation process about whether the nominee will be independent regarding any Trump-related issues that might come to the court. </p>
<p>This question — whether a nominee will be loyal to the president instead of the Constitution — is always asked. Only a nominee who didn’t want the job would say, “Well, I wouldn’t have the job without the president’s nomination. So of course I’m going to consider returning the gift when I get the chance.”</p>
<h2>The law is their master</h2>
<p>A more fruitful place to look is history. And the last time a president was fighting for his job in the Supreme Court, the justices he appointed chose loyalty to the law over loyalty to their nominator.</p>
<p>In 1974, President Nixon’s lawyers were in the <a href="https://constitutioncenter.org/blog/anniversary-of-united-states-v-nixon/">Supreme Court arguing</a> that tape recordings in Nixon’s office relating to the Watergate scandal were protected by executive privilege. </p>
<p>If Nixon had reason to bet on winning, it was because he had appointed four of the nine justices his counsel was arguing to — Justices Warren Burger, Harry Blackmun, Lewis Powell and William Rehnquist. In Nixon’s view, he had reason to be confident about his chances. As late as 1973, Nixon was referring to Burger, Blackmun and Powell <a href="http://nixontapeaudio.org/web/035-051.mp3">in a discussion with Burger as “my guys,”</a> calling them “great” and hoping to get yet “another one” on the court after Rehnquist. More disturbingly, they also discussed other cases then-pending before the court.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=416&fit=crop&dpr=1 600w, https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=416&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=416&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=523&fit=crop&dpr=1 754w, https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=523&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/225603/original/file-20180701-117374-fv4ua0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=523&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Chief Justice Warren E. Burger, right, with President Richard Nixon.</span>
<span class="attribution"><span class="source">AP</span></span>
</figcaption>
</figure>
<p><a href="http://www.washingtonpost.com/wp-srv/politics/special/watergate/kleindienst.html">Rehnquist recused himself</a> because he had worked in the Nixon Justice Department just before being confirmed. However, the other three justices voted unanimously, along with their colleagues, just 16 days after oral argument, <a href="https://supreme.justia.com/cases/federal/us/418/683/case.html">holding that Nixon’s tapes were not constitutionally protected</a>. The court found that even though executive privilege was important, allowing Nixon to invoke it to protect his recordings would “cut deeply into the guarantee of due process of law” that it was the court’s “basic function” to protect.</p>
<p><a href="http://www.latimes.com/politics/la-na-pol-gorsuch-confirmed-20170407-story.html">Justice Gorsuch</a>, Trump’s first appointee to the court, has obviously not yet had the opportunity to rule on a claim directly brought by his nominating president, as did Justices Powell or Blackmun or Chief Justice Burger. So we can’t know for sure how he would react in a similar case. At this early date we don’t even know who Gorsuch’s new colleague and fellow Trump nominee will be. </p>
<p>And because justices’ votes are more ideologically reliable in contested cases now, the Supreme Court is a much <a href="https://home.gwu.edu/%7Ebartels/Bartels%20Chapter%20-%20Polarization%20Volume%20FINAL.pdf">more political place than it was in the 1970s</a>. </p>
<p>But a political Supreme Court is not necessarily one that lacks independence. It would be wrong to assume that justices in general, or President Trump’s justices in particular, will eventually rule in his favor if the issue arises. </p>
<p>The Supreme Court has shown in the past that it is better than that. And if the current court winds up being worse, we will all be the worse for it.</p><img src="https://counter.theconversation.com/content/99169/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Enrique Armijo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With Justice Anthony Kennedy’s retirement, President Trump will appoint a second justice to the Supreme Court. Will his nominees be impartial if Trump ends up in the court because of the Russia probe?Enrique Armijo, Associate Professor of Law and Associate Dean of Academic Affairs, Elon UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/969762018-05-21T22:26:52Z2018-05-21T22:26:52ZSupreme Court ruling against class action lawsuits is a blow for workers – and #MeToo<p>The Supreme Court on May 21 <a href="https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf">narrowly ruled</a> that employees who sign arbitration agreements cannot band together to sue their employers for unpaid wages. </p>
<p>As a law professor who directs a clinical legal program that regularly represents low-wage workers, I believe this ruling essentially allows employers to hide workplace injustices while also potentially making it harder for workers – including victims of sexual harassment – to find justice. </p>
<h2>Why workers need class actions</h2>
<p><a href="https://theconversation.com/cheating-workers-out-of-wages-is-easier-than-ever-96758">Wage theft</a> – which includes wage and hour violations such as paying below minimum wage, misclassifying employees to avoid overtime pay and illegal deductions – is a widespread and underreported problem. </p>
<p>For instance, <a href="https://www.epi.org/publication/employers-steal-billions-from-workers-paychecks-each-year-survey-data-show-millions-of-workers-are-paid-less-than-the-minimum-wage-at-significant-cost-to-taxpayers-and-state-economies/">one 2017 study</a> by the Economic Policy Institute, a liberal think tank, found that in the 10 most populous states, 2.4 million workers were paid less than the minimum wage, to the tune of an estimated US$15 billion in lost wages per year nationwide.</p>
<p>In the Epic Systems Corp. v. Lewis case, an employee sought to join with co-workers to challenge unlawful wage and hour violations. Individually, an employee’s claim is usually not worth enough money to entice a lawyer to take the case. Collectively, however, employees can spread the costs of litigation.</p>
<p>Moreover, by uniting, workers reduce the employer’s ability to retaliate against them. A <a href="http://www.nelp.org/content/uploads/2015/03/BrokenLawsReport2009.pdf">2009 study</a> found that 43 percent of workers who complained to an employer or tried to organize a union faced retaliation, such as being fired or threatened with reduced pay. </p>
<p>In the case before the Supreme Court, the employers said that because their workers had signed arbitration agreements, they had to pursue any claims individually and could not join a class action lawsuit or arbitrate as a group.</p>
<h2>A tale of two acts</h2>
<p>The case pitted two federal laws against each other. On the one hand, the <a href="http://apps.americanbar.org/litigation/committees/adr/articles/spring2014-0614-federal-arbitration-act.html">Federal Arbitration Act</a>, enacted in 1925, requires courts to enforce arbitration agreements. On the other, the <a href="https://www.nlrb.gov/resources/national-labor-relations-act-nlra">National Labor Relations Act</a>, enacted in 1935, protects the right of employees to join together to enforce rights for their “mutual aid or protection.”</p>
<p>Associate Justice Neil Gorsuch, who authored the majority opinion, held that the arbitration act carried the day, reasoning that the labor act’s protections are narrowly limited to organizing unions and collective bargaining.</p>
<p>In my view, his opinion rests on a view of the workplace that few workers would recognize. In Gorsuch’s world, employers and employees have equal bargaining power and mutually agree to arbitrate disputes.</p>
<p>This equal footing may have been true at the white-shoe law firm where Gorsuch once worked. However, in today’s workplace, most employees must either take it or leave it when it comes to the terms of employment. <a href="https://www.epi.org/publication/the-growing-use-of-mandatory-arbitration/">Over 55 percent</a> of non-union, private sector employees are subject to mandatory arbitration – a percentage that has more than doubled since the early 2000s.</p>
<p>Gorsuch also has a very rosy view of arbitration as quick, informal and cheap. Yet if arbitration was so effective at dispensing justice, employees would be lining up to take advantage of this forum. They are not. The Economic Policy Institute found that only 1 in 32,000 employees actually files for arbitration. </p>
<p>And arbitration is not free. To begin with, employees need a lawyer if they want any hope of prevailing – although this is nearly impossible in the absence of a class action option. In addition, <a href="https://www.americanbar.org/content/dam/aba/publications/dispute_resolution_magazine/spring2017/3_rothman_trends_in_arbitrator.authcheckdam.pdf">arbitrators charge hundreds of dollars an hour</a>, and many agreements require employees to <a href="https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1363&context=fac_schol">pay part of the costs</a>.</p>
<p>Finally, arbitration proceedings are not swift, rather <a href="https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1051&context=lr">they look almost exactly like trials</a>. Indeed, they are often presided over by retired judges, who wield more discretion in arbitration than in the courtroom.</p>
<h2>Why employers like arbitration</h2>
<p>Business groups <a href="https://www.businessmanagementdaily.com/51467/big-win-employers-supreme-court-rules-arbitration-agreements-can-prohibit-class-action-suits">declared</a> the ruling a huge “win” for employers. </p>
<p>So why do they favor arbitration? </p>
<p>Well, first of all, employers <a href="https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=2019&context=articles">typically prevail</a>, and damage awards are generally smaller than in trials. </p>
<p>Second, unlike court trials, arbitrations are confidential and thus keep the facts of the case from public view. In turn, this means that employers do not have to change their workplace practices even if they lose the arbitration.</p>
<p>Moreover, employers know that employees lack the resources or wherewithal to file for arbitration, especially when they must go it alone. In other words, arbitration agreements do not just reduce the number of court cases an employer has to contend with, they reduce the possibility of liability altogether. Employers also know that <a href="https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1051&context=lr">government agencies lack the resources</a>, or political will, to enforce wage and hour laws.</p>
<h2>What comes next</h2>
<p>And what will be the result of this ruling? </p>
<p>In her 30-page dissent, Justice Ruth Bader Ginsburg <a href="https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf">summed it up</a>: “The inevitable result of today’s decision will be the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers.”</p>
<p>In other words, as employers gain impunity from liability, wage violations will increase. Workers will suffer.</p>
<p>It will also be chilling for the #MeToo movement, which has made <a href="https://nwlc.org/resources/metoowhatnext-strengthening-workplace-sexual-harassment-protections-and-accountability/">getting rid</a> of mandatory arbitration agreements paramount. That’s because arbitration shrouds workplace sexual harassment claims in <a href="https://www.theguardian.com/commentisfree/2018/apr/18/supreme-court-metoo-arbitration-clauses-decision-sexual-harassment">secrecy</a>, thus making it hard for victims to come forward while protecting serial abusers.</p>
<p>For the sake of American workers, I hope Congress intervenes soon to preserve collective actions and the enforcement of workplace rights.</p><img src="https://counter.theconversation.com/content/96976/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>
Michele Gilman is affiliated with the Women's Law Center of Maryland and the ACLU of Maryland.</span></em></p>The court narrowly ruled that employees who sign arbitration agreements can’t bring class action suits over unpaid wages.Michele Gilman, Venable Professor of Law, University of BaltimoreLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/914312018-02-15T13:28:46Z2018-02-15T13:28:46ZTrump’s challenge to the US legal system must be taken seriously<p>Donald Trump was elected president in the middle of perhaps the <a href="http://foxillinois.com/news/connect-to-congress/backlash-over-garland-sets-up-tough-confirmation-battle-for-gorsuch">most contentious battle</a> of recent times over the Supreme Court, as congressional Republicans refused to so much as hold hearings on Barack Obama’s nominee to fill an empty seat on the bench. Less than a month into his tenure, Trump courted controversy by criticising judges who struck down his <a href="https://constitutioncenter.org/blog/legal-issues-involved-in-the-trump-immigration-travel-order">travel ban</a> on people from several mostly Muslim countries. And now, a little more than a year on from his inauguration, Trump is playing politics with the judicial system more brazenly than any president in recent memory. </p>
<p>Trump has repeatedly suggested that the courts are no different to the other branches of government, that they are as political as Congress or the president. He has <a href="https://www.washingtonpost.com/news/the-fix/wp/2017/04/26/all-the-times-trump-personally-attacked-judges-and-why-his-tirades-are-worse-than-wrong/?utm_term=.5a17393d934f">specifically accused</a> judges of acting out of political antipathy: “It would be so great for our justice system if they would be able to read a statement and do what’s right,” <a href="https://constitutioncenter.org/blog/gorsuch-comments-would-add-new-dimension-to-trump-dispute">he fumed</a> in February 2017. </p>
<p>In response, some of Trump’s <a href="http://historynewsnetwork.org/article/168140">critics</a> have accused him of <a href="https://www.thenation.com/article/donald-trump-committed-another-impeachable-offense-this-week/">ignoring the constitutional limits</a> of his office. But for all the consternation over Trump’s words, the politicisation of the courts – and especially the Supreme Court – is not new. Trump is being more open about it, but he’s far from the first culprit.</p>
<h2>Political football</h2>
<p><a href="https://theconversation.com/the-legitimacy-of-the-us-supreme-court-is-at-stake-74897">As I’ve written elsewhere</a>, the modern trend to play politics with the Supreme Court dates back to at least 1987, when the Senate rejected Ronald Reagan’s nominee, <a href="https://www.theatlantic.com/politics/archive/2012/12/the-sad-legacy-of-robert-bork/266456/">Robert Bork</a>, who was considered “too conservative”. In 1991, when accused of sexual harassment by former colleague Anita Hill, Clarence Thomas <a href="http://www.americanrhetoric.com/speeches/clarencethomashightechlynching.htm">all but accused</a> the all-white Senate Judiciary Committee of racism; in 2010, then-Senate Majority Leader Mitch McConnell <a href="http://www.washingtonpost.com/wp-dyn/content/article/2010/08/05/AR2010080505247.html">described Obama nominee Elena Kagan</a> as “someone who has worked tirelessly to advance a political agenda.” (Kagan and Thomas both sit on the court today.)</p>
<p>Then came the unprecedented 2016 battle over whether Obama should be allowed to fill a vacant Supreme Court seat during his last year in office. Republicans refused to hold hearings on Obama’s nominee, Merrick Garland, claiming the American people should have the opportunity to weigh in via the election process. But their true motives were perhaps best expressed by conservative Texas senator and then-presidential hopeful <a href="http://www.presidency.ucsb.edu/ws/index.php?pid=114806">Ted Cruz</a>: “We cannot afford to lose the Supreme Court for generations to come.” Republicans held out until Obama’s term expired, then swiftly approved Trump’s nominee Neil Gorsuch in early 2017.</p>
<p>The full impact of Gorsuch’s appointment is not yet clear; most of the last term’s major cases were heard before his confirmation, so he did not participate in their resolution. But the few cases in which he wrote opinions indicate that he will turn out to be exactly the kind of justice the Trump Administration hoped: <a href="https://www.supremecourt.gov/opinions/16pdf/16-399_5436.pdf">narrowly interpreting</a> the court’s authority, <a href="https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf">supporting religious rights</a>, and <a href="https://www.supremecourt.gov/opinions/16pdf/16-309_h31i.pdf">objecting</a> (at least on the surface) to rights for same-sex couples. That he agreed with the reliably right-wing Clarence Thomas in every case will give conservatives plenty of hope.</p>
<p>Trump’s dismissal of judges and rulings he dislikes is of a piece with his general approach to those who disagree with him. Dismissing legal reports and rulings as political opposition plays well with his core supporters. A <a href="https://www.reuters.com/article/us-usa-trump-poll/trumps-low-approval-rating-masks-his-support-among-likely-voters-reuters-ipsos-poll-idUSKBN1D8380">Reuters poll</a> in November 2017 suggested that in spite of his historically low approval ratings, 85% of those who voted for Trump would do so again. But while his outrageous pronouncements might help Trump himself in the short term, they’re also doing serious damage.</p>
<h2>Underminer-in-chief</h2>
<p>The US legal system operates on an implicit understanding that while laws may be the result of political activity, once in operation they are applied to all individuals equally, regardless of political affiliation. Where people are convinced that laws apply differently depending on whether the judge is a Democrat or a Republican, the whole system comes into question. <a href="https://www.brennancenter.org/publication/how-judicial-elections-impact-criminal-cases">Studies</a> already suggest that <a href="https://www.americanprogress.org/issues/courts/reports/2012/10/25/42895/partisan-judicial-elections-and-the-distorting-influence-of-campaign-cash/">electing judges rather than appointing them</a>, as happens in many states, <a href="https://constitutioncenter.org/blog/the-problem-with-judicial-elections/">undermines the law’s neutrality</a>, and by the same token its legitimacy.</p>
<p>The US Supreme Court has a very particular line to toe. Because its justices are unelected and not term-limited, the court’s legitimacy rests not only on the principle of the rule of law, but also on the idea that its legal decisions aren’t political. The court’s ability to do its job is threatened if a majority of Americans think its decisions are just politics in disguise.</p>
<p>There is evidence to suggest this is already happening. A 2015 <a href="http://www.people-press.org/2015/07/29/negative-views-of-supreme-court-at-record-high-driven-by-republican-dissatisfaction/">Pew Center poll</a> showed dissatisfaction with the court at 43%, a 30-year high. 50% of conservative Republicans thought the court was making “liberal” decisions, while 40% of liberal Democrats thought the court was making “conservative” decisions.</p>
<p>This all has potentially serious implications for the constitution itself. The court is the constitution’s final arbiter; if the court’s institutional legitimacy is undermined, so too is its constitutional privilege. While some might argue that an undemocratic court has no role in a democratic political system (an argument known as <a href="http://lsolum.typepad.com/legaltheory/2012/09/legal-theory-lexicon-the-counter-majoritarian-difficulty.html">the counter-majoritarian difficulty</a>), any move to limit the court’s historical role should be a carefully considered decision, not the incidental result of a game of political football.</p>
<p>So far, none of these disasters has come to pass. The Supreme Court is operational, there is <a href="https://theconversation.com/in-trumps-america-is-the-supreme-court-still-seen-as-legitimate-84242">no evidence of non-compliance</a> with its rulings, and the state court system continues much as before. But that doesn’t mean it will always be that way. Trump’s comments about the courts and his attacks on judges are more than bad-tempered outbursts; they exacerbate tensions that could fundamentally weaken the US’s vital institutions.</p>
<p>If that turns out to be Trump’s legal legacy, it’ll matter more than any individual bill, treaty, or executive order ever could.</p>
<hr>
<p><em>On February 21, Emma Long joined the panel for The Conversation’s joint event with the British Academy, <a href="https://www.eventbrite.co.uk/e/trump-how-to-understand-an-unconventional-president-tickets-42320948095">Trump: How to understand an unconventional President</a>. You can watch the discussion on our <a href="https://www.facebook.com/ConversationUK/">Facebook page</a>.</em></p><img src="https://counter.theconversation.com/content/91431/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Emma Long does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Donald Trump is far from the first president to politicise the judiciary, but the way he’s going about it is uniquely dangerous.Emma Long, Lecturer in American Studies, University of East AngliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/761962017-04-20T23:20:40Z2017-04-20T23:20:40ZWhat Gorsuch’s conservative Supreme Court means for workers<p>As Neil Gorsuch takes his seat on the Supreme Court, the 4-4 ideological stalemate that plagued the institution after the death of Justice Antonin Scalia has been broken, reestablishing its conservative tilt. </p>
<p><a href="https://theconversation.com/why-the-supreme-court-matters-for-workers-67498">In an article I wrote last year</a> on the implications of Donald Trump getting the chance to fill Scalia’s seat, I described how the conservative members of the court have long held a 5-4 majority that routinely ruled for businesses over workers. </p>
<p>So now that they have their majority back, what does this portend for the court and cases involving worker rights? A careful look at Gorsuch’s record demonstrates, I believe, how this will be bad news for American workers and anyone who cares about economic justice.</p>
<h2>Religion in the workplace</h2>
<p>As an appellate judge on the 10th Circuit, <a href="https://www.ca10.uscourts.gov/opinions/12/12-6294.pdf">Gorsuch joined the majority</a> in June 2013 granting Hobby Lobby, a chain of craft stores, the right to deny legally mandated contraception to its workers on religious grounds. The <a href="https://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf">Supreme Court affirmed that opinion</a> a year later.</p>
<p>The key context here is that limiting women’s access to birth control has been shown to <a href="https://theconversation.com/how-limiting-womens-access-to-birth-control-and-abortions-hurts-the-economy-57546">increase economic inequality</a>. Without control over the timing and size of their families, women struggle to complete their educations and advance in the workplace. In turn, this depresses their family’s income. </p>
<p>Yet Gorsuch and the Supreme Court majority have ranked the religious beliefs of business owners over the health care needs of workers. Indeed, in a subsequent case, Gorsuch <a href="https://www.ca10.uscourts.gov/opinions/13/13-1540.pdf">joined a dissent</a> that argued that asking a religious organization to simply fill out a form to opt out of the contraception requirement is too great a burden. </p>
<p>This issue is likely to return to the court, where Gorsuch will certainly break a 2016 impasse <a href="https://www.supremecourt.gov/opinions/15pdf/14-1418_8758.pdf">that sent a similar case</a> back to lower courts for resolution. Future cases are also likely to raise more conflicts over religion in the workplace. </p>
<p>As Justice Ginsburg warned in <a href="https://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf">her Hobby Lobby dissent</a>:</p>
<blockquote>
<p>“Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage … or according women equal pay for substantially similar work?” </p>
</blockquote>
<h2>Worker safety and the ‘frozen trucker’</h2>
<p>So what about his record on worker rights? His opinion in what has become known as the “frozen trucker” case illustrates Justice Gorsuch’s <a href="https://www.ca10.uscourts.gov/opinions/15/15-9504.pdf">lack of empathy</a> for blue-collar workers. </p>
<p>In 2009, a truck driver was trapped in his cab after the brakes on his trailer froze in subzero temperatures. Before long, the driver was losing sensation in his limbs and having trouble breathing. After calling his employer and waiting for over three hours for a repair vehicle, he unhitched his truck and drove to a nearby gas station. He was fired for abandoning his haul. </p>
<p>The majority of the three-judge appellate court upheld the Department of Labor’s decision that the trucker’s termination violated a law permitting drivers to “refuse to operate” trucks in unsafe conditions. Gorsuch dissented, however, arguing the statute did not protect the trucker but instead directed him to “sit and wait for help to arrive (a legal if unpleasant option).” </p>
<p>Gorsuch’s narrow and selective reading of ambiguous statutory terms led the majority to quote his own words from the oral argument back to him: “Our job isn’t to legislate and add new words that aren’t present in the statute.”</p>
<p>Gorsuch’s dissent makes clear that he is a textualist, meaning he looks solely to the plain meaning of a statute without regard to its context or congressional intent in enacting it. It also suggests that Gorsuch is out of touch with the realities of life in the modern day workforce outside a judge’s rarefied chambers. </p>
<h2>A boon for arbitrators</h2>
<p>Gorsuch also appears likely to continue the court’s embrace of mandatory arbitration, which Scalia spearheaded in a <a href="http://www.minnesotalawreview.org/wp-content/uploads/2016/07/Schwartz.pdf">series</a> of 5-4 decisions that limited the rights of consumers and employees to have their day in court. </p>
<p>In the employment context, mandatory arbitration means that disputes on issues such as discrimination, unpaid wages and sexual harassment are heard in a private forum that has no right of appeal and <a href="http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1959&context=facpub">favors businesses</a>. Arbitration agreements <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2775437">are usually buried</a> in the fine print in one-sided contracts, and most employees have no option but to sign if they want the job. </p>
<p>In his own jurisprudence, Gorsuch <a href="http://www.scotusblog.com/2017/03/judge-gorsuchs-arbitration-jurisprudence/">generally enforced the presumption in favor</a> of arbitration, even where the contractual terms were contradictory or ambiguous. His views on arbitration <a href="https://www.law360.com/articles/887293/gorsuch-and-the-future-of-class-action-waivers">will become clearer</a> when the Supreme Court hears a pivotal case in October that will decide whether employers can evade class actions by forcing workers into individual arbitrations. </p>
<p>These class action waivers <a href="http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=2019&context=articles">are increasingly popular</a> among employers, yet they destroy the ability of employees to bring cases together that would individually not attract a lawyer due to small dollar amounts. </p>
<h2>Furthering unions’ decline</h2>
<p>Finally, Justice Gorsuch <a href="https://www.bna.com/gorsuch-bring-conservative-n73014450227/">is expected</a> to align himself with Justice Scalia’s critical views on organized labor. </p>
<p>Justice Scalia’s death in February 2016 granted unions a reprieve in a case involving the constitutionality of requiring public workers to pay their fair share of union dues, even if they aren’t members. That case <a href="https://www.supremecourt.gov/opinions/15pdf/14-915_1bn2.pdf">was decided just a few weeks later</a> in a 4-4 split that left a lower court’s decision upholding such fees intact. </p>
<p>The issue is certain to return to the court in the future – with Gorsuch a likely fifth vote to rule against the unions.</p>
<p>Union membership <a href="http://www.epi.org/publication/benefits-of-collective-bargaining/">is associated</a> with a wage premium of 13.6 percent as compared with nonunionized workers, according to the progressive think tank Economic Policy Institute. At the same time, the decline in union membership <a href="https://theconversation.com/the-rise-and-fall-of-us-labor-unions-and-why-they-still-matter-38263">is a factor in growing economic inequality</a> due to the wage depression suffered by union and nonunion members alike. </p>
<p><a href="https://www.bostonglobe.com/news/politics/2017/02/24/donald-trump-claims-remake-gop-party-american-worker/PeF6IjybU9C77idKYgIshK/story.html">President Trump claims</a> to be a champion for America’s forgotten workers. Yet his main accomplishment in his first 100 days is the appointment of Gorsuch.</p>
<p>For all the reasons I’ve outlined, I expect the appointment of Gorsuch to undermine the rights of workers, including Trump’s supporters, and further weaken the middle class.</p><img src="https://counter.theconversation.com/content/76196/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michele Gilman is affiliated with the ACLU of Maryland and the Women's Law Center of Maryland.</span></em></p>With Neil Gorsuch’s appointment to the high court, conservatives regain their 5-4 majority, which will likely benefit employers over workers.Michele Gilman, Venable Professor of Law, University of BaltimoreLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/755192017-04-03T22:41:21Z2017-04-03T22:41:21ZShould Americans fear the ‘nuclear option’ in Congress?<figure><img src="https://images.theconversation.com/files/163744/original/image-20170403-21969-jh23so.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">GOP Senate Judiciary Committee members after voting in favor of sending Gorsuch to the full Senate for confirmation.</span> <span class="attribution"><span class="source">Photo/J. Scott Applewhite</span></span></figcaption></figure><p>Soon Senate Republicans are likely to consider a “nuclear option” to put Judge Neil Gorsuch on the Supreme Court. </p>
<p>Just like a nuclear strike, the repercussions are likely to be wide-ranging and long-lasting. The effects will be felt not only for political relations in the Senate but also for the future of the high court and the bounds of constitutional law. </p>
<p>I have studied constitutional law and politics for over <a href="https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=35+Law+%26+Soc%27y+Rev.+345&srctype=smi&srcid=3B15&key=3db9ea4301b2443a7da4fc38b4d69095">two decades</a>, and this is as significant a potential turn as I can recall. </p>
<h2>Filling the high court</h2>
<p>As we learn in high school civics, the Constitution gives the president the power to nominate a justice to the Supreme Court and grants the Senate the right of “<a href="https://constitutioncenter.org/interactive-constitution/articles/article-ii?gclid=CKnJkJaxiNMCFcSIswodhW8EMw">advice and consent</a>” in the appointment – meaning they get to question and vote on the nominee.</p>
<p>To “win” appointment to the Supreme Court, a nominee needs only a simple majority, or 51 votes. Having been nominated by a Republican president, and with the Republicans holding a 52-48 majority in the Senate, Gorsuch might seem to have nothing to worry about.</p>
<p>But, Senate rules also allow for a “filibuster,” a parliamentary tactic that permits any one senator to hold up business unless at least 60 senators vote for “cloture,” or an end to delay. Unlike that old movie, “<a href="http://www.imdb.com/title/tt0031679/">Mr. Smith Goes to Washington</a>,” a senator doesn’t have to keep talking to block a vote. Simply the threat of a filibuster is enough to stall a nominee.</p>
<p>Filibuster and cloture are entirely creations of the Senate. In fact, <a href="https://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm">cloture</a> was not established until 1917. Originally, it required a two-thirds vote, but that has been whittled down to 60 over time. </p>
<p>A filibuster gives power to the minority party in the Senate to block legislation or appointments unless the majority party can round up 60 votes. In the case of Gorsuch’s nomination, if Democrats decide to filibuster – which looks likely – Republicans would have to attract eight Democratic senators to reach cloture and move forward. As of April 3, when Gorsuch’s nomination was poised to be taken up by the full Senate, only <a href="http://www.politico.com/story/2017/04/gorsuch-senate-democrats-236797">four Democrats</a> have announced support for cloture, leaving Republicans four votes short.</p>
<p>The threat that Gorsuch could be blocked from the Supreme Court when he has majority support enrages Republicans, but this is not the first time the Senate has been in this situation. In the spring of 2005, when President George W. Bush was in office and Republicans had a 55-45 majority in the Senate, Republicans threatened to eliminate the filibuster to prevent the Democrats from blocking judicial appointments. </p>
<p>Coined the “nuclear option” because of its potential to “blow up” Senate procedures, Senate leaders would have engineered a series of procedural votes and parliamentary declarations to rule the filibuster inapplicable to judicial appointments.</p>
<p>The filibuster was saved that spring by a bipartisan group of senators, nicknamed the “<a href="http://www.cnn.com/2005/POLITICS/05/23/filibuster.fight/">gang of 14</a>,” who engineered a compromise in which Democrats agreed not to filibuster judicial nominees except in “<a href="http://www.cnn.com/2005/POLITICS/05/24/filibuster.fight/">extraordinary circumstances</a>.” However, the compromise lasted only as long as that Congress. </p>
<p>In 2013, with Democrats in control of the Senate and White House and Republicans holding up nominations with the filibuster, Democratic leaders in the Senate actually pulled the <a href="https://www.washingtonpost.com/politics/senate-poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cfe8-52b6-11e3-9fe0-fd2ca728e67c_story.html?utm_term=.a095137ed06e">trigger on the nuclear option</a>. In other words, they changed Senate rules so that nominees for executive office appointments and the lower federal courts would no longer be subject to filibusters. However, Democrats did not extend the nuclear option to legislation or nominees to the Supreme Court. </p>
<h2>The pendulum swings</h2>
<p>All of which brings us back to the Gorsuch nomination. </p>
<p>As happens often in American politics, the pendulum has swung again. Republicans find themselves in control of the Senate and White House with Democrats threatening to filibuster a nominee to the Supreme Court. </p>
<p>Watching senators flip-flop on the issue depending on who is in power is almost comical. Senate Republican leader <a href="http://www.politifact.com/truth-o-meter/statements/2013/nov/22/mitch-mcconnell/mitch-mcconnell-among-flip-floppers-senates-nuclea/">Mitch McConnell</a> was prepared to end the “abuse” of filibustering in 2005 when his party led the Senate. He then decried the Democrats “break[ing] the rules” in 2013 when they eliminated filibustering on lower court appointments. Four years later, with a Supreme Court seat at stake and Republicans in the majority, he has threatened to extend the nuclear option to all presidential nominations.</p>
<p>But the humor ends there, for the consequences of the nuclear option are significant. </p>
<p>Since the Reagan administration, appointments to the Supreme Court have become more politically fraught. People increasingly recognize the significance of a court closely split along ideological lines. Nor is the present incarnation of the nuclear option just another sign of partisan deadlock in the Senate. </p>
<p>The Gorsuch nomination and the threat of the nuclear option come after Republicans’ having stalled for nearly a year to consider President Obama’s nominee for the Supreme Court, Judge Merrick Garland. For all the allegations of Democrats engaging in “advise and obstruct,” it is just as plausible to say that Republicans are playing naked power politics, ensuring that they can bend the Supreme Court and the future of constitutional law to their liking. </p>
<p>In the <a href="http://www.constitution.org/fed/federa78.htm">Federalist Papers 78</a>, Alexander Hamilton declared that “the complete independence of the courts of justice is peculiarly essential in a limited” constitutional government. </p>
<p>“There is no liberty, if the power of judging be not separated from the legislative and executive powers,” Hamilton wrote, quoting <a href="https://www.britannica.com/biography/Montesquieu">Montesquieu</a>.</p>
<p>Although the Senate may not be intervening directly in the Supreme Court’s deliberations, the true threat of the nuclear option is its tolerance – indeed, its embrace – of singular partisan interests in the appointment of the judiciary. If we should mourn anything, it is that the current political climate cannot seem to produce a nominee to our highest court who can garner more than 60 votes in the Senate. </p>
<p>Certainly, this is a problem now, as a known conservative judge, Gorsuch, is set to replace a former conservative on the court, Justice Antonin Scalia. But, should one of the “liberal” justices – the 84-year-old Ruth Bader Ginsburg or the 78-year-old Stephen Breyer – step down under current circumstances, all bets are off for the future of the Supreme Court and the legitimacy of Senate confirmation.</p><img src="https://counter.theconversation.com/content/75519/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jon Gould is a professor of public affairs and law at American University. He previously served in the Office of Legal Policy during the Obama Administration.</span></em></p>GOP members of the Senate Judiciary Committee have pushed Gorsuch’s nomination onto the full Senate. Both the Republicans and Democrats are getting ready for a fight.Jon Gould, Professor of Public Affairs and Law, American University School of Public AffairsLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/745952017-03-21T17:13:37Z2017-03-21T17:13:37ZSupreme Court justices in the pews and on the bench – and where Neil Gorsuch fits in<p>On Jan. 31, President Donald Trump <a href="https://www.nytimes.com/2017/01/31/us/politics/supreme-court-nominee-trump.html?_r=0">nominated Judge Neil M. Gorsuch</a> of the Tenth Circuit Court of Appeals to fill the vacancy on the Supreme Court occasioned by the death of Justice Antonin Scalia. The <a href="https://www.nytimes.com/2017/02/16/us/politics/neil-gorsuch-supreme-court-senate-hearing.html">Senate hearing</a> on Judge Gorsuch’s nomination to the Supreme Court started on Monday, March 20.</p>
<p>As important as is a Supreme Court confirmation, Congress and the media have focused chiefly on the <a href="https://qz.com/900567/us-supreme-court-nominee-neil-gorsuchs-controversial-hobby-lobby-decision-explained/">numerous controversies</a> that have embroiled the new Trump administration. One media outlet even called Gorsuch’s confirmation process the <a href="http://www.cnn.com/2017/03/13/politics/neil-gorsuch-supreme-court-nomination/">“stealth Supreme Court nomination.”</a> </p>
<p>Judge Gorsuch has a <a href="http://www.scotusblog.com/2017/01/potential-nominee-profile-neil-gorsuch/">reputation as a judicial conservative</a> in the mold of Scalia. He has not ruled on several controversial issues such as gun rights, but the <a href="http://www.politico.com/magazine/story/2017/02/neil-gorsuch-supreme-court-future-214724">conventional wisdom</a> among court watchers is that if confirmed, the “young” (49-year-old) Gorsuch will swing the high court back to the right on many social issues and will impact Supreme Court jurisprudence for decades to come. As a result, progressive interest groups are scrambling to marshal their forces to <a href="https://qz.com/900567/us-supreme-court-nominee-neil-gorsuchs-controversial-hobby-lobby-decision-explained/">oppose Gorsuch’s confirmation</a>. </p>
<p>Judge Gorsuch has a notably strong record on one controversial subject, that being on church-state matters. His rulings have generally supported a more <a href="http://www.christianitytoday.com/gleanings/2017/january/trump-nominates-neil-gorsuch-supreme-court.html">“accommodationist”</a> approach to resolving church-state controversies, a position advocated by religious conservatives. In addition, during the White House announcement ceremony for his nomination, Judge Gorsuch remarked that he was <a href="http://www.christianitytoday.com/gleanings/2017/january/trump-nominates-neil-gorsuch-supreme-court.html">“thankful for my family, my friends, and my faith.”</a> </p>
<p>His statement raises the question of whether a judge is influenced to rule a particular way on church-state controversies by his or her religious faith.</p>
<p>I am a constitutional law professor who <a href="https://global.oup.com/academic/product/the-second-disestablishment-9780195399677?cc=us&lang=en&">specializes in church and state matters</a>. I have also participated in more than 25 church-state cases before the Supreme Court as counsel and through friend-of-the-court briefs. </p>
<p>In my view, the religious faith of a justice, standing alone, tells us little about how he will vote in church-state cases or on other controversial social issues. It is a conservative religious worldview that is more likely to reinforce and validate an existing conservative judicial ideology.</p>
<h2>Gorsuch’s judicial decisions</h2>
<p>Following Trump’s announcement, conservative religious groups such as <a href="http://www.focusonthefamily.com/">Focus on the Family</a> and the <a href="http://www.frc.org/historymission">Family Research Council</a> praised Gorsuch’s nomination. The evangelical magazine Christianity Today declared that Gorsuch will be a justice <a href="http://www.christianitytoday.com/gleanings/2017/january/trump-nominates-neil-gorsuch-supreme-court.html">“that evangelicals will love.”</a> In contrast, progressive religious groups have <a href="https://www.au.org/church-state/march-2017-church-state/featured/supreme-mistake">voiced opposition</a> to Gorsuch’s nomination based on his church-state holdings.</p>
<p>Little is known about Gorsuch’s personal faith other than that he is religiously observant. <a href="http://www.dailymail.co.uk/news/article-4196096/Trump-s-Supreme-Court-pick-belongs-liberal-church.html">Gorsuch was raised Catholic</a>, attending a private Jesuit school in his youth. He became an Episcopalian while a graduate student at Oxford, the religion of his wife whom he met while in England. Currently the <a href="https://www.washingtonpost.com/news/acts-of-faith/wp/2017/02/01/neil-gorsuch-belongs-to-a-notably-liberal-church-and-would-be-the-first-protestant-on-the-court-in-years/?utm_term=.b3f61ac6842d">judge attends a mainline Episcopal church</a> in Boulder, Colorado, that takes progressive stances on social issues. </p>
<p>The liberal orientation of Gorsuch’s church stands in contrast to his own record of judicial decision-making. During his 10-year tenure on the Tenth Circuit Court of Appeals, Gorsuch has taken a firm stance on behalf of protecting religious liberty claims against government regulations, a position that has made him a favorite of religious conservatives. Several of those cases have been highly controversial.</p>
<p>The infamous <a href="http://www.scotusblog.com/case-files/cases/sebelius-v-hobby-lobby-stores-inc/">Hobby Lobby case</a> is one example. In that case, the Supreme Court held that for-profit corporations may assert a religious liberty defense against having to comply with the contraceptive care insurance mandate under the Affordable Care Act. Judge Gorsuch wrote a concurring opinion in the Tenth Circuit’s decision that went even further, urging that courts should defer to a person’s subjective claim that a law burdens his religious beliefs, regardless of how tangential that burden appears objectively. </p>
<p><a href="http://www.scotusblog.com/case-files/cases/little-sisters-of-the-poor-home-for-the-aged-v-burwell/">Little Sisters of the Poor</a> is another example of a case that involved the question of a religious exemption from complying with the ACA. In that case, the Catholic order that operates nursing homes claimed that even applying for an exemption under the ACA from the government violated their religious beliefs. Gorsuch dissented when the Tenth Circuit declined to reconsider its decision rejecting the Little Sisters’ religious liberty claims. That dissent argued that the court had given insufficient deference to the Little Sisters’ own articulation of the burden on their religious beliefs.</p>
<p>He has also written or joined on opinions siding with the ability of governments to display religious symbols on public property, such as a <a href="http://www.usatoday.com/story/news/nation-now/2017/02/07/court-denies-rehearing-ten-commandments-case/97614964/">Ten Commandments monument</a> on courthouse lawns. According to <a href="http://www.scotusblog.com/2017/01/potential-nominee-profile-neil-gorsuch/">one bipartisan analysis</a> of Gorsuch’s record: </p>
<blockquote>
<p>“The common thread in these cases is one that matters very deeply to conservatives: a sense that the government can permit public displays of religion – and can accommodate deeply held religious views – without either violating the religion clauses of the Constitution or destroying the effectiveness of government [nondiscrimination] programs.” </p>
</blockquote>
<h2>Religious affiliations in Supreme Court</h2>
<p>The question many people are asking is, will Gorsuch’s religious affiliation matter? First, let’s look at the religious makeup of the Supreme Court.</p>
<p>Currently, the <a href="http://www.christianitytoday.com/ct/2010/mayweb-only/29-22.0.html">Supreme Court comprises</a> five Catholics and three Jews (Justice Scalia was also Catholic). This has led some commentators to speculate on what this means for issues such as <a href="https://doi.org/10.1017/S0748081400000424">abortion regulations and church-state matters</a>. </p>
<p>The vast majority of justices have been <a href="http://www.christianitytoday.com/ct/2010/mayweb-only/29-22.0.html">Protestants</a>, which is not surprising considering the Protestant dominance of the culture until recently. President Andrew Jackson <a href="http://www.christianitytoday.com/ct/2010/mayweb-only/29-22.0.html">appointed the first Catholic</a> to the Supreme Court (Chief Justice Roger Taney) in 1836, a fact that did not go unnoticed. The next Catholic justice, Edward D. White, was appointed in 1894, <a href="https://doi.org/10.1017/S0748081400000424">some 58 years later</a>. (White was more controversial for being a former Confederate officer than for being Catholic) </p>
<p>The first Jewish justice was appointed in 1916 (Louis Brandeis), to be followed by Benjamin Cardozo in 1932, which established the unofficial <a href="http://www.jstor.org/stable/4466935">“Jewish seat”</a> on the court. From 1940 forward, there has always been at least one Catholic and one Jewish justice on the high court (absent a hiatus from 1969 to 1993 of a Jewish justice). </p>
<p>Those demographics have changed significantly over the past two decades. With the resignation of Justice John Paul Stevens in 2010, the court was left <a href="http://www.nytimes.com/2010/04/11/weekinreview/11liptak.html">without a Protestant member</a> for the first time in its history. </p>
<h2>Here’s what history tells us</h2>
<p>In most instances, research shows, a justice’s religious faith has been a poor predictor of his or her judicial philosophy (and that would assume that one can draw accurate conclusions about what any religion requires of its adherents). </p>
<p>For example, is it safe to assume that a Catholic justice will vote against abortion and gay marriage because of the teachings of the Catholic Church?</p>
<p>Catholic Justice Frank Murphy (1940-1949) was a <a href="https://doi.org/10.1017/S0748081400000424">staunch New Deal liberal</a>, whereas Catholic Justice William Brennan (1956-1990) was likely the Supreme Court’s fiercest supporter of church-state separation and reproductive choice during his long tenure. </p>
<p>Currently, Catholic Justice Sonia Sotomayor is considered to be part of the court’s liberal wing. <a href="https://books.google.com/books?id=jpcYAAAAIAAJ">Another notable liberal</a> was Justice Hugo Black (1937-1971), who was a Southern Baptist, while two conservative justices were William Howard Taft (1921-1930) (Unitarian) and William Rehnquist (1972-2005) (Lutheran). </p>
<p>And though Catholic Justice Anthony Kennedy usually sides with the conservatives, <a href="http://www.momentmag.com/symposium-religion-supreme-court/">he has voted</a> to uphold abortion rights and gay marriage. Likely the closest religious indicator of judicial philosophy has been among the court’s <a href="http://www.jstor.org/stable/4466935">Jewish justices</a>, who have overwhelmingly been liberal.</p>
<p>To be sure, there have been some exceptions. <a href="http://www.jstor.org/stable/23328097?seq=1#page_scan_tab_contents">Justice William Strong (1870-1880) was an evangelical Presbyterian</a> who served briefly as president of a religious organization that sought to amend the Constitution to declare the United States a “Christian nation.” </p>
<p>Similarly, <a href="https://doi.org/10.2307/3660708">Justice David J. Brewer (1889-1910)</a> was an evangelical Congregationalist who declared in a court opinion that <a href="https://global.oup.com/academic/product/the-second-disestablishment-9780195399677?cc=us&lang=en&">America was a Christian nation</a>, a matter he wrote about at length off the bench. And Justice Felix Frankfurter (1938-1962), a secular Jew, frequently <a href="http://www.jstor.org/stable/4466935">referenced his religious/ethnic heritage</a> in his strong support for church-state separation. </p>
<p>But those instances have generally represented the exceptions.</p>
<p>The safest conclusion to draw from history is that religious affiliation is probably a poor indicator of judicial philosophy. It generally does not preordain any judicial holdings. However, a conservative religious outlook may reinforce an existing conservative judicial ideology, and vice versa, particularly on social issues.</p><img src="https://counter.theconversation.com/content/74595/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steven K. Green does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Judge Gorsuch was raised Catholic and later became an Episcopalian. An expert on Church-State issues says don’t read too much into religion as an indicator of judicial philosophy.Steven K. Green, Professor of Law, Director of the Center for Religion, Law & Democracy, Willamette UniversityLicensed as Creative Commons – attribution, no derivatives.