tag:theconversation.com,2011:/uk/topics/brett-kavanaugh-56609/articlesBrett Kavanaugh – The Conversation2024-03-19T12:22:46Ztag:theconversation.com,2011:article/2258772024-03-19T12:22:46Z2024-03-19T12:22:46ZSupreme Court’s questions about First Amendment cases show support for ‘free trade in ideas’<figure><img src="https://images.theconversation.com/files/582619/original/file-20240318-16-9btkbx.jpg?ixlib=rb-1.1.0&rect=24%2C0%2C8218%2C5487&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Clouds float over the Supreme Court building on March 15, 2024.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-supreme-court-of-the-united-states-building-is-seen-in-news-photo/2079442702">Celal Gunes/Anadolu via Getty Images</a></span></figcaption></figure><p>This term, the U.S. Supreme Court has heard oral arguments in a total of five cases involving questions about whether and how the First Amendment to the Constitution applies to social media platforms and their users. These cases are parts of a <a href="https://www.nytimes.com/2024/03/17/us/politics/trump-disinformation-2024-social-media.html">larger effort by conservative activists</a> to block what they claim is government censorship of people who seek to spread false information online.</p>
<p>The most recently heard case, on March 18, 2024, was <a href="https://www.scotusblog.com/case-files/cases/murthy-v-missouri-3/">Murthy v. Missouri</a>, about whether the federal government’s direct communication with social media platforms, specifically about online content relating to the COVID-19 public health emergency, violated the First Amendment rights of private citizens. </p>
<p>The case stemmed from the Biden administration’s efforts to combat misinformation that spread online, including on social media, during the pandemic. The plaintiffs said White House officials “<a href="https://www.supremecourt.gov/DocketPDF/23/23-411/293780/20231219192259919_23-411ts%20Murthy.pdf#page=41">threatened platforms with adverse consequences</a>” if they didn’t take down or limit the online visibility of inaccurate information – and that those threats amount to the unconstitutional suppression of free speech from private individuals who shared content that contained debunked conspiracy theories and contradicted scientific evidence.</p>
<p>It is not uncommon for government officials to informally pressure private parties, like social media platforms, into limiting, censoring or moderating speech by third parties. As Justice Amy Coney Barrett seemingly implied during the Murthy v. Missouri oral arguments, “vanilla encouragement” by government officials would be constitutionally permissible. But when the informal pressure turns into bullying, threats or coercion, it may trigger First Amendment protections, as the Supreme Court ruled in another case called <a href="https://www.oyez.org/cases/1962/118">Bantam Books v. Sullivan, from 1963</a>.</p>
<p>But the Biden administration said its effort to fight COVID misinformation was normal activity, in which the government is allowed to express its views to persuade others, especially in ways that advance the public interest. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men in suits stand in a room with screens and flags." src="https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=422&fit=crop&dpr=1 600w, https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=422&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=422&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=530&fit=crop&dpr=1 754w, https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=530&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=530&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">President Joe Biden and Surgeon General Vivek Murthy attend a meeting in 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-joe-biden-speaks-alongside-u-s-surgeon-general-dr-news-photo/1400488520">Kevin Dietsch/Getty Images</a></span>
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<p>Several justices seemingly agreed with the Biden administration and accepted its view that ordinary pressure to persuade is permissible. </p>
<p>More broadly, the Supreme Court has wrestled with the application of the First Amendment to cases involving social media platforms. Earlier this term, the court heard several cases that involved content moderation – both by the platforms themselves and by public officials using their own social media accounts. As Justice Elena Kagan put it during one round of oral arguments: “<a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-324_fe9g.pdf#page=22">That’s what makes these cases hard</a>, is that there are First Amendment interests all over the place.” </p>
<p>Perhaps most fundamentally, the court seeks to evaluate the relationship between social media platforms and public officials.</p>
<h2>A public official or a private social media user?</h2>
<p>On March 15, the Supreme Court released its <a href="https://www.supremecourt.gov/opinions/23pdf/22-611_ap6c.pdf">unanimous decision in Lindke v. Freed</a> – another case involving social media platforms. The issue in that case was whether a public official can delete or block private individuals from commenting on the official’s social media profile or posts. </p>
<p>This case involved James Freed, the city manager of Port Huron, Michigan, and Facebook user Kevin Lindke. Freed initially created his Facebook profile before entering public office, but once he was appointed city manager, he began using the Facebook profile to communicate with the public. Freed eventually blocked Lindke from commenting on his posts after Lindke <a href="https://www.supremecourt.gov/opinions/23pdf/22-611_ap6c.pdf">“unequivocally express(ed) his displeasure with the city’s approach to the (COVID-19) pandemic.”</a></p>
<p>The court ruled that on social media, where users, including government officials, often mix personal and professional posts, “<a href="https://www.supremecourt.gov/opinions/23pdf/22-611_ap6c.pdf">it can be difficult to tell whether the speech is official or private</a>.” But the court unanimously found that if an official possesses “actual authority to speak” on behalf of the government, and if the person “purported to exercise that authority when” posting online, the post is a government action. In that case, the official cannot block users’ access to view or comment on it. </p>
<p>The court ruled that if the poster either does not have authority to speak for the government, or is not clearly exercising that authority when posting, then the message is private. In that situation, the poster can restrict viewing and commenting because that is an exercise of their own First Amendment rights. But when a public official posts in their official capacity, the poster must respect the First Amendment’s limitations placed on government. The court sent <a href="https://www.supremecourt.gov/opinions/23pdf/22-324_09m1.pdf">a similar case</a>, <a href="https://www.oyez.org/cases/2023/22-324">O'Connor-Ratcliff v. Garnier</a>, back to a lower court for reconsideration based on the ruling in the Lindke case.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An illustration of a person surrounded by phone and computer screens spouting all manner of information and noise." src="https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&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">Online information can be a cacophony from which it is hard to discern truth and accuracy.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/information-attack-and-people-panic-negative-royalty-free-illustration/1347323610">Nadezhda Kurbatova/iStock / Getty Images Plus</a></span>
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<h2>Who controls what’s online?</h2>
<p>At the root of the plaintiffs’ claims in both these cases is content moderation – whether a public official can moderate another user’s content by deleting their posts or blocking the user, and whether the federal government can interact with social media platforms to mitigate the spread of debunked conspiracy theories and scientifically disprovable narratives about the pandemic, for instance.</p>
<p>Ironically, though conservatives argue that the federal government cannot interact with the social media platforms to influence their content moderation, Florida and Texas – states governed by Republican majorities in the statehouse and Republican governors – enacted state laws that seek to restrict the platforms’ own content moderation.</p>
<p>While the laws in each state differ slightly, they <a href="https://knightcolumbia.org/content/in-cases-involving-florida-and-texas-social-media-laws-knight-institute-urges-supreme-court-to-reject-extreme-arguments-made-by-states-and-platforms">share similar provisions</a>. First, both laws contain “must-carry provisions,” which “prohibit social media platforms from removing or limiting the visibility of user content in certain circumstances,” according to the Knight First Amendment Institute at Columbia University.</p>
<p>Second, both laws require the social media platforms to provide individualized explanations to any user whose content is moderated by the platform. Both laws were passed to combat the false perception that the platforms <a href="https://www.theguardian.com/media/2021/feb/01/facebook-youtube-twitter-anti-conservative-claims-baseless-report-finds">disproportionately silence conservative speech</a>.</p>
<p>The Florida and Texas laws were challenged in two cases whose oral arguments were heard by the Supreme Court in February 2024: <a href="https://www.oyez.org/cases/2023/22-277">Moody v. NetChoice</a> and <a href="https://www.oyez.org/cases/2023/22-555">NetChoice v. Paxton</a>, respectively. Florida and Texas argued that they can regulate the platforms’ content moderation policies and processes, but the platforms argued that these laws infringe on their editorial discretion, which is protected by well-established First Amendment precedent.</p>
<p>During oral argument in both cases, the justices appeared skeptical of both laws. As Chief Justice John Roberts stated, the First Amendment <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-555_omq2.pdf">prohibits the government, not private entities, from censoring speech</a>. Florida and Texas argued that they enacted these laws to protect the free speech of their citizens by limiting the platforms’ ability to moderate content. </p>
<p>But social media users do not have any First Amendment protections on the platforms, because private entities, like Facebook, are free to moderate the content on their platforms as they see fit. Roberts was quick to respond to Texas and Florida: “The First Amendment restricts what the government can do, and what the government’s doing here is saying you must do this, you must carry these people.” </p>
<h2>Where are the online boundaries of free speech?</h2>
<p>Collectively, these cases demonstrate the Supreme Court’s interest in defining the boundaries of First Amendment protections as they relate to social media platforms and their users. Moreover, the court seems focused on establishing the limits of the relationship between government and social media platforms.</p>
<p>The justices’ questions during the NetChoice cases suggest that they are skeptical of government regulation that forces social media platforms to carry certain content. In this way, the justices seem poised to affirm the principle that government cannot directly or formally force an individual or, in this case, a private company, to convey a message that it does not wish to carry. </p>
<p>But the justices’ questions during Murthy v. Missouri seem to suggest that it is not a violation of the First Amendment for government officials to informally interact or communicate with social media platforms in an attempt to persuade them not to carry material the government dislikes.</p>
<p>Considering all of these cases together, the court seems posed to further promote a robust “free trade in ideas,” which was a theory first invoked in 1919 by Justice Oliver Wendell Holmes in <a href="https://supreme.justia.com/cases/federal/us/250/616/">Abrams v. United States</a>. In Lindke v. Freed, the court identified the distinction between private speech on social media platforms by a public official, which is protected by the First Amendment, and professional speech, which is subject to First Amendment limitations that protect others’ rights. </p>
<p>In the NetChoice cases, the court seems ready to limit a state’s ability to directly compel social media platforms to convey messages that they may moderate. And in Murthy v. Missouri, the justices seem ready to affirm that while indirect compulsion may be unconstitutional, ordinary pressures to persuade social media platforms are permissible. </p>
<p>This promotion of a robust marketplace of ideas appears to stem from neither giving the government extra powers to shape public discourse, nor excluding government from the conversation altogether.</p><img src="https://counter.theconversation.com/content/225877/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wayne Unger 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>These cases have asked the justices to consider how to apply some of the most sweeping constitutional protections – those of free speech – to an extremely complex online communication environment.Wayne Unger, Assistant Professor of Law, Quinnipiac UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2247182024-03-04T18:49:30Z2024-03-04T18:49:30ZThe Constitution sets some limits on the people’s choices for president - but the Supreme Court rules it’s unconstitutional for state governments to decide on Trump’s qualifications<figure><img src="https://images.theconversation.com/files/579002/original/file-20240229-24-47x21c.jpg?ixlib=rb-1.1.0&rect=174%2C174%2C2495%2C1526&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A 1935 painting depicts the 1787 meeting that adopted the U.S. Constitution.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:%27The_Adoption_of_the_U.S._Constitution_in_Congress_at_Independence_Hall,_Philadelphia,_Sept._17,_1787%27_(1935),_by_John_H._Froehlich.jpg">John H. Froehlich via Wikimedia Commons</a></span></figcaption></figure><p>When the Supreme Court ruled on March 4, 2024, that former President Donald Trump <a href="https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf">could appear on state presidential ballots</a> for the 2024 election, it did not address an idea that seemed simple and compelling when Justice Brett Kavanaugh raised it during the Feb. 8, 2024, oral arguments in the case:</p>
<blockquote>
<p>“<a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-719_5he6.pdf">What about the idea that we should think about democracy</a>, think about the right of the people to elect candidates of their choice, of letting the people decide?”</p>
</blockquote>
<p>In essence, he was asking whether it would be better to let the people, rather than a court or a state official, decide whether a controversial candidate should return to the White House.</p>
<p>Kavanaugh had a point. Under the Constitution, the people can be – and are – trusted to make a great many important decisions.</p>
<p>But Kavanaugh also missed a key point that I learned in years of <a href="https://my.wlu.edu/directory/profile?ID=x1345">teaching about the presidency, the Constitution and impeachment</a>. Right from the very beginning of the nation, and persisting until today, there have been rules that limit the ability of the people to choose their leaders.</p>
<h2>The Constitutional Convention of 1787</h2>
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<a href="https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in formal 18th century dress." src="https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=767&fit=crop&dpr=1 600w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=767&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=767&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=964&fit=crop&dpr=1 754w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=964&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=964&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Gouverneur Morris.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Portrait_of_Gouverneur_Morris_(1752-1816),_1817.jpg">Ezra Ames via Wikimedia Commons</a></span>
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<p>The drafters of the Constitution already had the discussion Kavanaugh was trying to start during the oral arguments.</p>
<p>In July 1787, the delegates to the Constitutional Convention, where the Constitution was written, were discussing impeachment. Gouverneur Morris – a Pennsylvania delegate who <a href="https://www.neh.gov/article/confessions-gouverneur-morris">wrote the preamble to the Constitution</a>, including its opening phrase, “<a href="https://constitutioncenter.org/the-constitution/preamble">We the People of the United States</a>” – made an argument Kavanaugh’s question would echo 237 years later.</p>
<p>When discussing <a href="https://www.smithsonianmag.com/history/inside-founding-fathers-debate-over-what-constituted-impeachable-offense-180965083/">whether it should be possible for Congress to remove the president</a>, Morris said no.</p>
<p>The people could decide for themselves, he said. Making the president subject to impeachment, Morris said, “<a href="https://press-pubs.uchicago.edu/founders/documents/a1_2_5s7.html">will hold him in such dependence</a> that he will be no check on the Legislature, (nor) a firm guardian of the people and of the public interest.” With regular national elections, Morris said, a flawed chief executive could be removed from office by the voters. Morris added, “<a href="https://press-pubs.uchicago.edu/founders/documents/a1_2_5s7.html">In case he should be reelected</a>, that will be sufficient proof of his innocence.”</p>
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<a href="https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in formal 18th century dress." src="https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=699&fit=crop&dpr=1 600w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=699&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=699&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=879&fit=crop&dpr=1 754w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=879&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=879&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">George Mason.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:George_Mason.jpg">Dominic W. Boudet after John Hesselius via Wikimedia Commons</a></span>
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<p>But George Mason, a Virginia delegate and slaveholder who <a href="https://www.smithsonianmag.com/history/george-mason-forgotten-founder-he-conceived-the-bill-of-rights-64408583/">championed the idea for the Bill of Rights</a>, was ready with a response. Pointing out that true and fair elections were key to the new nation’s success, Mason noted that if criminal conduct by some future president involved corruption of the election process, the people might have trouble deciding the culprit’s fate in a subsequent election:</p>
<blockquote>
<p>“<a href="https://press-pubs.uchicago.edu/founders/documents/a1_2_5s7.html">Shall any man be above Justice?</a> Above all shall that man be above it, who can commit the most extensive injustice? … Shall the man who has practised corruption and by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?”</p>
</blockquote>
<p><a href="https://press-pubs.uchicago.edu/founders/documents/a1_2_5s7.html">Others chimed in with similar replies</a>: Benjamin Franklin of Pennsylvania; James Madison of Virginia, a future president; Elbridge Gerry of Massachusetts, a future vice president; and Edmund Randolph of Virginia, a future U.S. attorney general and secretary of state.</p>
<p>The records of the Constitutional Convention say this at the conclusion of that section of debate: </p>
<blockquote>
<p>“Mr. Gouverneur Morris’s opinion had been changed by the arguments used in the discussion. … Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust … The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity.” </p>
</blockquote>
<p>The outcome of that discussion resulted in the first of several rules that prevent the American people from choosing just anyone as the president.</p>
<h2>Key restrictions</h2>
<p><a href="https://constitution.congress.gov/constitution/article-1/#article-1-section-3-clause-6">Section 3 of Article 1 of the Constitution</a> is the most direct result of the debate between Morris and Mason. It says that people, including the president, who are impeached and convicted can be barred from office.</p>
<p><a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-5">Section 1 of Article 2 of the Constitution</a> imposes more limits. It declares that some people <a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-5">simply can’t be president</a> – those not born U.S. citizens, those under age 35 and those who have lived less than 14 years of their lives in the U.S.</p>
<p>Eight decades later, Congress and the states agreed to add a new restriction: <a href="https://constitution.congress.gov/constitution/amendment-14/#amendment-14-section-3">Section 3 of the 14th Amendment</a>, ratified in 1868, says those seeking to hold federal and state offices who have previously taken an oath to support the Constitution <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">may not have attemped to subvert or overthrow the Constitution</a>.</p>
<p>And in 1951, the <a href="https://constitution.congress.gov/constitution/amendment-22/">22nd Amendment to the Constitution</a> was ratified, declaring that nobody who had been president for two terms could become president again.</p>
<p>All of these rules stand in the way of simply “letting the people decide,” as Kavanaugh suggested. Strictly speaking, those rules are not democratic. But they are intended to protect democracy itself.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large room with chairs and desks." src="https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=233&fit=crop&dpr=1 600w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=233&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=233&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=293&fit=crop&dpr=1 754w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=293&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=293&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. Senate is one of the less democratic elements of the federal government.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/File:United_States_Senate_Floor.jpg">U.S. Senate via Wikimedia Commons</a></span>
</figcaption>
</figure>
<h2>Democracy isn’t always democratic</h2>
<p>There are plenty of provisions in the Constitution that run counter to simple democracy. </p>
<p>The Senate and the Electoral College give <a href="https://theconversation.com/why-does-the-electoral-college-exist-and-how-does-it-work-5-essential-reads-149502">extra power to states with relatively small populations</a>.</p>
<p>No Congress – even one whose members were each elected by huge majorities – can pass a law abridging freedom of religion or freedom of speech. If a Congress were to pass such a law, the Supreme Court, which has been called <a href="https://www.thirteen.org/wnet/supremecourt/democracy/history.html">the nation’s least democratic branch</a>, could declare it unconstitutional.</p>
<p>Democratic majorities in America are both empowered and constrained by the Constitution. The founders wanted the will of the people to be heard and respected but never given absolute power. Absolute power of any kind was to be checked by a complicated set of prohibitions and procedures.</p>
<p>Kavanaugh was wise to call attention to the fact that in a democracy, the preferences of the people get a high level of deference. Voters certainly can <a href="https://www.pewresearch.org/short-reads/2023/07/21/little-change-in-americans-views-of-trump-over-the-past-year/">judge the conduct and character of Donald Trump</a> – and many have done so, both favorably and unfavorably.</p>
<p>But George Mason was also right. When politicians corrupt the electoral process, or try to do so, it makes little sense to use elections as the mechanism to fix the problem. </p>
<p>The constitutional provisions for impeachment and the 14th Amendment make clear that people who are found guilty of serious wrongdoing while in office, or violate an oath to support the Constitution, are ineligible to hold high office thereafter. In short, the people can’t choose a Senate-convicted official or an oath-breaking insurrectionist, even if they want to. </p>
<p>America’s Constitution has long acknowledged that the preservation of the republic may, in some cases, require the disqualification of candidates and officeholders who commit crimes while in positions of power or participate in insurrection against the very government they have sworn to serve. </p>
<p>The Supreme Court has sidestepped the question of whether Trump’s actions disqualify him from office and declared instead that Congress must make that determination, under the various constitutional restrictions that continue to exist about who is allowed to serve as president. The practical effect of its decision will be to let the people decide this vital question in the coming presidential election.</p><img src="https://counter.theconversation.com/content/224718/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert A. Strong 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>Right from the very beginning of the nation, there have been rules that limit the ability of the people to choose their leaders.Robert A. Strong, Emeritus Professor of Politics, Washington and Lee University; Senior Fellow, Miller Center, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2078882023-06-15T23:44:31Z2023-06-15T23:44:31ZSupreme Court affirms Congress’s power over Indian affairs, upholds law protecting Native American children<figure><img src="https://images.theconversation.com/files/532285/original/file-20230615-29-56m1hd.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C8256%2C5487&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Wiping away tears, Nita Battise, vice chairperson of the tribal council of the Alabama-Coushatta Tribe of Texas, reacts to the Supreme Court ruling upholding a law that gives Native American families priority in adoptions and foster care placements of tribal children.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/alabama-coushatta-tribe-of-texas-tribal-council-vice-news-photo/1258712949">Mandel Ngan/AFP via Getty Images</a></span></figcaption></figure><p>The Supreme Court affirmed the constitutionality of the Indian Child Welfare Act, a 1978 law enacted to <a href="https://icwa.narf.org/about-icwa">protect Native American children</a> in the U.S. and strengthen their families, in a <a href="https://www.oyez.org/cases/2022/21-376">June 15, 2023, ruling</a>. <a href="https://ictnews.org/news/supreme-court-affirms-icwa">Tribal leaders</a> praised the decision as upholding the basic constitutional principles governing the relationships among Native nations and the federal government.</p>
<p>Congress originally passed the <a href="https://www.childwelfare.gov/topics/systemwide/diverse-populations/americanindian/icwa/">Indian Child Welfare Act</a> in response to requests from tribal leaders, and other advocates for Native Americans, to stop state governments from removing an alarming number of Native children from their families. Before the law took effect, state social welfare agencies were removing <a href="https://www.narf.org/nill/documents/icwa/federal/lh/hr1386.pdf">between 25% and 35%</a> of all Native American children, and <a href="https://www.icwlc.org/wpsite/wp-content/uploads/2014/05/6a.-Supreme-Court-Mississippi-Band-of-Choctaw-Indians-v-Holyfield-1989.pdf">90% of those removed</a> were sent to be raised by non-Native families.</p>
<p>The Indian Child Welfare Act recognizes the government-to-government relationship Native American nations have with the United States. It covers certain child placements and sets uniform standards for state and tribal courts to follow when they decide American Indian child welfare cases. These standards include provisions that ensure that tribal governments are aware of and can have a say in the placement of Native American children. They aim to reduce the trauma of family and tribal separation by instructing courts to make active efforts to keep families together. </p>
<p>In 2017, the state of Texas and non-Natives seeking to adopt or foster Native American children challenged provisions of the law. They argued that the law exceeds Congress’ constitutional powers, impermissibly tells state officials what to do, and illegally discriminates against non-American Indians. </p>
<p>Writing for a 7-2 majority, Justice Amy Coney Barrett wrote, “<a href="https://supreme.justia.com/cases/federal/us/599/21-376/#tab-opinion-4753196">the bottom line</a> is that we reject all of the petitioners’ challenges to the statute.”</p>
<p>As a result of the ruling, <a href="https://theconversation.com/native-american-childrens-protection-against-adoption-by-non-indian-families-is-before-the-supreme-court-190598">Native nations’ most valuable resource</a> – their children – will continue to gain the benefits of growing up knowing their own Indigenous cultures and communities.</p>
<h2>Court and Congress diverge</h2>
<p>As my <a href="https://theconversation.com/supreme-court-reversed-almost-200-years-of-us-law-and-tradition-upholding-tribal-sovereignty-in-its-latest-term-186264">research</a> has shown, Congress and the Supreme Court have increasingly diverged in how they view the laws that relate to Native American tribes. </p>
<p>The court has not consistently deferred to Congress but rather has increasingly claimed the power to be the final arbitrator of American Indian policy. In doing so, it has undermined congressional policies meant to foster tribal governance and protect tribal lands and bodies.</p>
<p>The petitioners in the current case, <a href="https://www.oyez.org/cases/2022/21-376">Haaland v. Brackeen</a>, seized on this trend. They questioned Congress’ ability to enact laws affecting tribal governments and their citizens. They argued that Congress lacked the constitutional authority to enact the Indian Child Welfare Act.</p>
<p>From my perspective as an <a href="https://scholar.google.com/citations?user=ASBSmrkAAAAJ&hl=en&oi=ao">expert in federal Native American law</a>, the court’s decision is significant because the court affirmed Congress’ constitutional power over American Indian affairs. </p>
<figure class="align-center ">
<img alt="A man wearing a loincloth and glasses places a necklace over a child's head." src="https://images.theconversation.com/files/493888/original/file-20221107-17-2w41de.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/493888/original/file-20221107-17-2w41de.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/493888/original/file-20221107-17-2w41de.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/493888/original/file-20221107-17-2w41de.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/493888/original/file-20221107-17-2w41de.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/493888/original/file-20221107-17-2w41de.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/493888/original/file-20221107-17-2w41de.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">
<figcaption>
<span class="caption">A member of the Mashpee Wampanoag Tribe places regalia onto his son before a powwow.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/tribal-member-places-regalia-onto-his-son-before-the-start-news-photo/1241675829">Joseph Prezioso/Anadolu Agency via Getty Images</a></span>
</figcaption>
</figure>
<h2>Congress’ role in Native American affairs</h2>
<p>The majority of the justices responded to the petitioners’ arguments by reiterating the court’s longstanding characterization of Congress’ power over American Indian affairs as “plenary and exclusive.” </p>
<p>Writing for the majority, Barrett stated, “Congress’s power to legislate with respect to Indians is well-established and broad. Consistent with that breadth, we have not doubted Congress’s ability to legislate across a wide range of areas, including criminal law, domestic violence, employment, property, tax, and trade.”</p>
<p>Barrett relied on earlier cases to find that Congress’ power over American Indian affairs comes from and remains limited by the U.S. Constitution. “We reiterate that Congress’s authority to legislate with respect to Indians is not unbounded,” she wrote.</p>
<p>The majority concluded, “If there are arguments that [the act] exceeds Congress’s authority as our precedent stands today, petitioners do not make them.”</p>
<h2>Open questions remain</h2>
<p>The majority reaffirmed Congress’ broad authority over Native American affairs but left other questions unresolved.</p>
<p>The Texas attorney general and the other litigants claimed that the Indian Child Welfare Act discriminates against non-Native Americans by making it harder for them to adopt Native children. The law instructs courts to place children with their relatives – either Native or non-Native, someone in their tribe, or an American Indian family if possible. </p>
<p>The litigants said this preference for placement with an Native family is racial and violated the equal protection clause of the Constitution, which requires government policies to be racially neutral. Tribal nations counter that federal laws and previous court decisions have defined Native status as <a href="https://supreme.justia.com/cases/federal/us/417/535/">a political, not racial, designation</a>. The Court did not deal with this claim.</p>
<p>Justice Brett Kavanaugh wrote separately to emphasize the seriousness of these claims. He stated, “[t]he equal protection issue remains undecided.”</p>
<p>Kavanaugh’s words may invite future challenges to the Indian Child Welfare Act and to the political status of American Indians as citizens of tribal governments.</p>
<p>In the meantime, the court’s decision ensures that Native children will continue to experience the social and health benefits of being raised in their tribal cultures. </p>
<p>More importantly, the court’s decision acknowledges the vital, constitutional role that Congress plays in Native American affairs and defers to a congressional policy protective of Native nations and their people.</p><img src="https://counter.theconversation.com/content/207888/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>A Supreme Court ruling has upheld the right of Congress to pass laws about Native American tribes’ rights to self-government.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/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/1908152022-09-26T12:39:17Z2022-09-26T12:39:17ZA seismic change has taken place at the Supreme Court – but it’s not clear if the shift is about principle or party<figure><img src="https://images.theconversation.com/files/486320/original/file-20220923-13751-hqtm9e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The U.S. Supreme Court Building is shown in September 2022.</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/the-exterior-of-the-supreme-court-of-the-united-states-building-in-picture-id1243398495">Sarah Silbiger for The Washington Post via Getty Images</a></span></figcaption></figure><p>In the summer of 2022, the U.S. witnessed a dramatic change in how the majority of Supreme Court justices understand the Constitution. </p>
<p>At the end of a single term, the court <a href="https://theconversation.com/a-revolutionary-ruling-and-not-just-for-abortion-a-supreme-court-scholar-explains-the-impact-of-dobbs-185823">rejected the long-standing constitutional right to abortion</a>, <a href="https://theconversation.com/supreme-court-sweeps-aside-new-yorks-limits-on-carrying-a-gun-raising-second-amendment-rights-to-new-heights-183486">expanded gun rights</a> and ruled that <a href="https://theconversation.com/religious-liberty-has-a-long-and-messy-history-and-there-is-a-reason-americans-feel-strongly-about-it-186613">religion can have</a> a bigger role in public institutions. </p>
<p>These outcomes reflect a seismic shift in U.S. law and policy, but scholars of the court dispute what kind of change it was, exactly – a principled or partisan one. As a <a href="https://www.springer.com/series/16259">close observer of constitutional politics</a>, I believe this is an important debate with deep consequences for the perceived legitimacy of the court. </p>
<p>Some Supreme Court scholars see the court’s evolution as the rise of “<a href="https://time.com/6192277/supreme-court-originalism/">a profound and principled constitutional theory</a>,” while others see it as “<a href="https://www.brennancenter.org/our-work/analysis-opinion/originalism-run-amok-supreme-court">conservative policy choices in pretentious garb</a>.” </p>
<p>The public’s <a href="https://theconversation.com/confidence-in-the-supreme-court-is-declining-but-there-is-no-easy-way-to-oversee-justices-and-their-politics-187233">confidence</a> in the court, meanwhile, <a href="https://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx">has fallen</a> after the <a href="https://www.oyez.org/cases/2021/19-1392">Dobbs v. Jackson Women’s Health Organization</a> abortion ruling to the lowest level since records began in the 1970s. </p>
<p>Public perceptions of the <a href="https://reason.com/volokh/2022/09/20/the-way-to-stop-worrying-about-judicial-legitimacy-is-to-stop-worrying-about-judicial-legitimacy/">the court and its legitimacy</a> may depend on whether citizens see the recent rulings as the victory of one side in a long-standing contest of ideas, or instead simply the triumph of <a href="https://www.courthousenews.com/democrats-are-driving-a-nosedive-in-supreme-court-ratings/">partisan politics</a>. </p>
<figure class="align-center ">
<img alt="A large crowd of people holding signs related to abortion are seen outside the Supreme Court on a cloudy day" src="https://images.theconversation.com/files/486307/original/file-20220923-2967-1evnnh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/486307/original/file-20220923-2967-1evnnh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/486307/original/file-20220923-2967-1evnnh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/486307/original/file-20220923-2967-1evnnh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/486307/original/file-20220923-2967-1evnnh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/486307/original/file-20220923-2967-1evnnh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/486307/original/file-20220923-2967-1evnnh.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">
<figcaption>
<span class="caption">People protest in response to the Dobbs v. Jackson ruling outside the Supreme Court Building on June 24, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/people-protest-in-response-to-the-dobbs-v-jackson-womens-health-in-picture-id1404906099">Brandon Bell/Getty Image</a></span>
</figcaption>
</figure>
<h2>Origins of the current court</h2>
<p>Supreme Court Justice Sonia Sotomayor, arguably the most liberal of the current justices, characterized the court’s controversial rulings in 2021 as the result of “<a href="https://www.supremecourt.gov/opinions/21pdf/21-147_g31h.pdf#page=38">a restless and newly constituted court</a>.” </p>
<p>Observers of the new court mostly agree on how it changed, but disagree on what the justices are restless about. </p>
<p>The change has been building over several years, driven by the long-standing <a href="https://nationalaffairs.com/publications/detail/originalism-and-the-rule-of-the-dead">beliefs of</a> the older conservative justices – like Clarence Thomas and Samuel J. Alito – plus the addition of three new conservative justices – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – all three nominated by former president Donald Trump <a href="https://www.politico.com/news/2020/09/26/trump-legacy-supreme-court-422058">within an unusually brief</a> period of time. </p>
<p>Presidents <a href="https://www.georgewbushlibrary.gov/research/topic-guides/nominations-and-appointments-federal-office">George W. Bush</a> and <a href="https://www.obamalibrary.gov/subject-matter/supreme-court">Barack Obama</a>, for example, each had two nominations over their eight-year presidencies, while Trump helped place three new members on the court within a single four-year term.</p>
<p>These back-to-back appointments created a new supermajority of six conservatives on the court. This altered not only the rulings of the court, but also the selection of cases the court would hear. </p>
<p>The court chooses the few cases it will hear from the <a href="https://ballotpedia.org/Certiorari">thousands of applications for review</a>. If there were only five conservative-leaning justices, they could not guarantee they would hold the majority necessary for a final vote. </p>
<p>Often, Chief Justice John Roberts, generally considered an institutionalist determined to safeguard the <a href="https://fivethirtyeight.com/features/roberts-is-the-new-swing-justice-that-doesnt-mean-hes-becoming-more-liberal/">public perception of the court</a>, or Gorsuch, widely seen as a <a href="https://www.latimes.com/politics/la-na-pol-gorsuch-supreme-court-conservative-20190712-story.html">libertarian-leaning</a> protector of the <a href="https://www.reuters.com/article/us-usa-court-pornography/conservative-u-s-justice-gorsuch-again-sides-with-liberals-in-criminal-case-idUSKCN1TR2WD">rights of criminal defendants</a>, <a href="https://slate.com/news-and-politics/2021/04/gorsuch-libertarian-textualist-immigrant-rights.html">immigrants</a> and <a href="https://www.vox.com/2020/7/10/21318796/supreme-court-mcgirt-oklahoma-native-american-neil-gorsuch">Native Americans</a>, joined the liberals to flip a ruling. </p>
<p>A supermajority of six conservative justices gives them the confidence to take on major cases. Five makes a majority on the Supreme Court, but six can make a movement. </p>
<h2>It is a change in constitutional theory</h2>
<p>One view of the dramatic change at the court is that it reflects a long-running debate between two constitutional theories, or competing ways of reading the document. </p>
<p>The new court upholds <a href="https://constitutioncenter.org/the-constitution/white-papers/on-originalism-in-constitutional-interpretation">originalism</a>, which has replaced its rival, <a href="https://lsolum.typepad.com/legaltheory/2018/11/legal-theory-lexicon-living-constitutionalism.html">living constitutionalism</a>.</p>
<p>The theory <a href="https://theconversation.com/what-is-originalism-did-it-underpin-the-supreme-courts-ruling-on-abortion-and-guns-debunking-the-myths-186440">of originalism</a> argues that the core purpose of a written Constitution is to protect against the government’s inevitable bad behavior. The best way to defend individual rights and ensure a stable government is to enforce the Constitution’s exact language and the meaning it expressed to the Americans who ratified it. </p>
<p>From an originalist view, allowing clever lawyers to see the Constitution as evolving without the endorsement of the people simply defeats its purpose. So this constitutional theory holds that the document can only be changed by amendment, but not by courts.</p>
<p>The theory of <a href="https://www.law.uchicago.edu/news/living-constitution">living constitutionalism</a>, meanwhile, is rooted in the idea that the Constitution should adapt to the American people’s evolving values, as well as the needs of contemporary society. This allows the Supreme Court to reinterpret the meaning of the language and expand the rights protected by the Constitution. </p>
<p>One side of the debate believes that upholding the true meaning of a written Constitution requires stable principles, while the second believes it requires evolving ones. </p>
<p>The two ways of reading the Constitution are not reconcilable.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/486206/original/file-20220923-34255-yn67m8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A white woman with brown hair and a black dress stands next to a man in military uniform, who stands next to another white man with a black robe." src="https://images.theconversation.com/files/486206/original/file-20220923-34255-yn67m8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/486206/original/file-20220923-34255-yn67m8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/486206/original/file-20220923-34255-yn67m8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/486206/original/file-20220923-34255-yn67m8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/486206/original/file-20220923-34255-yn67m8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/486206/original/file-20220923-34255-yn67m8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/486206/original/file-20220923-34255-yn67m8.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">Supreme Court Justices Amy Coney Barrett and Brett Kavanaugh attend the State of the Union address in March 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/supreme-court-justices-amy-coney-barrett-john-roberts-brett-m-and-g-picture-id1238865241">Saul Loeb - Pool/Getty Images</a></span>
</figcaption>
</figure>
<h2>It is partisan politics</h2>
<p>The second view of what happened during the court’s last term is that the shift was not about honest constitutional debate, but instead about partisan politics. In this view, the justices are <a href="https://www.youtube.com/watch?v=PWRJiC5L744">politicians in robes</a> who pursue the policy goals of their party. This means that when the Republican appointees gained the majority in the court, GOP preferences followed.</p>
<p>Partisans know which school of thought is more likely to give them the outcomes they want.</p>
<p>Over the last few decades, partisanship has become a stronger force in shaping the nomination process. President Richard Nixon, for example, was a Republican who nominated Supreme Court <a href="https://www.oyez.org/justices/harry_a_blackmun">Justice Harry Blackmun</a>, who went on to write the liberal majority opinion <a href="https://www.oyez.org/cases/1971/70-18">for Roe v. Wade</a> in 1973. </p>
<p>But today, justices nominated by Republican or Democratic presidents are chosen with much more care, with the aid of outside groups like the conservative <a href="https://slate.com/news-and-politics/2017/01/how-the-federalist-society-became-the-de-facto-selector-of-republican-supreme-court-justices.html">Federalist Society</a>. </p>
<p>The partisan view encourages people to see constitutional questions as they often view politics – simply ways of dodging principles while pushing ideological agendas. It characterizes the justices as pawns and constitutional debates as smokescreens. </p>
<p>That perception may actually be accurate about some of the justices, some of the time. But it is also surely not true about most of the justices, most of the time.</p>
<p>Perhaps the worst result of the partisan view is that interpreting the Constitution becomes about merely group identity, with Democrats and Republicans cynically stuck in permanent camps. This makes crucial public deliberations about the constitutional foundations of a free society nearly impossible. </p>
<p>The focus on constitutional theory argues that when debate is not about principle, it ought to be, while the partisan view argues that even when it seems to be, it is not.</p>
<p>Constitutional debate goes back and forth as the control of the court shifts. Over time, it will likely shift again, while the partisan view in the long term degrades the legitimacy of a correct, as well as incorrect, court.</p><img src="https://counter.theconversation.com/content/190815/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>Major Supreme Court decisions and reversals last term are leaving some people, including this scholar on constitutional politics, wondering – what’s going on with the court?Morgan Marietta, Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1870402022-07-28T12:24:28Z2022-07-28T12:24:28ZAfter Roe’s overturning, Americans are demanding Supreme Court term limits<figure><img src="https://images.theconversation.com/files/474921/original/file-20220719-6821-znixn7.jpg?ixlib=rb-1.1.0&rect=1363%2C225%2C4428%2C3620&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The US Supreme Court in Washington, DC, on June 27, 2022. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-us-supreme-court-in-washington-dc-on-june-27-2022-the-news-photo/1241574008?adppopup=true">Stefani Reynolds/AFP via Getty Images</a></span></figcaption></figure><p>Following the Supreme Court’s landmark ruling in <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Dobbs v. Jackson Women’s Health Organization</a>
overturning half a century of abortion rights under <a href="https://www.law.cornell.edu/supremecourt/text/410/113">Roe v. Wade</a>, nearly <a href="https://www.politico.com/newsletters/playbook-pm/2022/06/27/new-poll-voters-oppose-overturning-roe-back-court-reform-00042585">two-thirds of Americans</a> want fundamental court reform, specifically term limits for Supreme Court justices. </p>
<p>Indeed, on July 25, 2022, <a href="https://ocgnews.com/georgia-rep-hank-johnson-introduces-term-limit-measures-for-supreme-court-justices/">Democrats introduced a bill</a> that would allow a new justice to take the bench every two years and spend 18 years in active service. </p>
<p>The majority that overturned Roe was possible only because of the current system in which <a href="https://sunypress.edu/Books/D/Deciding-to-Leave">justices serve for life</a> and are therefore able to choose when and whether to step down. </p>
<p>Justice Amy Coney Barrett owes her seat to Justice Ruth Bader Ginsburg’s <a href="https://www.politico.com/news/magazine/2022/06/10/ruth-bader-ginsburg-retire-legacy-00038638">refusal to retire</a> under a Democratic president and her <a href="https://apnews.com/article/ruth-bader-ginsburg-voting-rights-politics-joe-biden-elections-bf6704fa6e900967a705054c801a5495">subsequent death</a> under a Republican. </p>
<p>Justice Brett Kavanaugh is on the court because of Reagan appointee Justice Anthony Kennedy’s <a href="https://www.latimes.com/opinion/op-ed/la-oe-ward-kennedy-retirement-20180629-story.html">decision to step down</a> under a GOP administration. Justice Neil Gorsuch was appointed after conservative Justice <a href="https://apnews.com/article/religion-elections-courts-presidential-elections-gun-politics-0a5453e54bb848fd8858124e7a80dfec">Antonin Scalia happened to die</a> and President Donald Trump took office. </p>
<p>The author of the opinion in Dobbs, Justice Samuel Alito, took his seat when Republican Justice Sandra Day O’Connor <a href="https://www.nytimes.com/2005/07/02/politics/politicsspecial1/oconnor-to-retire-touching-off-battle-over-court.html">chose to leave</a> under President George W. Bush. </p>
<p>Justice Clarence Thomas – the leader of <a href="https://www.theguardian.com/us-news/2022/jul/10/clarence-thomas-supreme-court-justice">the court’s conservative majority</a> – has served on the high court for over three decades and is there only because liberal icon <a href="https://apnews.com/article/f10d6e4172ccc67bb2fc4cb9070ab2b5">Justice Thurgood Marshall</a> refused to retire under a Democratic president and subsequently died with a Republican in office. </p>
<p>All federal judges in the U.S., including Supreme Court justices, enjoy life tenure. </p>
<p>Under <a href="https://constitutioncenter.org/interactive-constitution/interpretation/article-iii/clauses/45">Article 3 of the Constitution</a>, justices cannot be forced out of office against their will, barring impeachment. This provision, which followed <a href="https://www.nytimes.com/2022/06/30/briefing/supreme-court-us-democracy.html">the precedent of Great Britain</a>, is meant to ensure judicial independence that allows judges to render decisions based on their understandings of the law – free from political, social and electoral influences.</p>
<p><a href="https://polsci.umass.edu/people/paul-m-collins-jr">Our</a> extensive <a href="https://www.niu.edu/clas/polisci/about/faculty-staff/ward.shtml">research</a> on the Supreme Court shows life tenure, while well intended, has had unforeseen consequences. </p>
<p>It skews how the <a href="https://www.cambridge.org/core/books/supreme-court-confirmation-hearings-and-constitutional-change/5294A199815AA35235FD64AB04FC7E4D">confirmation process</a> and <a href="https://www.sup.org/books/title/?id=22199">judicial</a> <a href="https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780195372144.001.0001/acprof-9780195372144">decision-making</a> work and causes justices who want to retire to <a href="https://www.sunypress.edu/p-3721-deciding-to-leave.aspx">behave like political operatives</a>. </p>
<h2>Problems with lifetime tenure</h2>
<p>Life tenure has motivated presidents to pick <a href="https://qz.com/1324841/brett-kavanaughs-age-at-53-means-that-he-may-wield-influence-on-the-supreme-court-for-a-very-long-time/#:%7E:text=That's%20about%20where%20it%20was,the%20court%20was%20around%2053">younger and younger</a> justices. </p>
<p>In the post-World War II era, presidents generally forgo appointing jurists in their 60s, who would bring <a href="https://www.fjc.gov/history/exhibits/graphs-and-maps/age-and-experience-judges">a great deal of experience</a>, and instead nominate judges in their 40s or 50s, who could serve on the court for many decades. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Supreme Court Justice Ruth Bader Ginsburg in 2005." src="https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1003&fit=crop&dpr=1 600w, https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1003&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1003&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1260&fit=crop&dpr=1 754w, https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1260&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/408271/original/file-20210624-19-rsfajf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1260&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Justice Ruth Bader Ginsburg.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-justice-ruth-bader-ginsburg-watches-president-news-photo/525578128?adppopup=true">Brooks Kraft LLC/Corbis via Getty Images</a></span>
</figcaption>
</figure>
<p>And <a href="https://www.pewresearch.org/fact-tank/2017/02/08/younger-supreme-court-appointees-stay-on-the-bench-longer-but-there-are-plenty-of-exceptions/">they do</a>. </p>
<p>When <a href="https://www.washingtonpost.com/archive/politics/1991/07/02/bush-picks-thomas-for-supreme-court/943b9fda-e079-405e-974e-14c2d0cd999b/">Thomas was appointed</a> at age 43 by President George H.W. Bush in 1991, he <a href="https://www.nytimes.com/1993/11/27/us/2-years-after-his-bruising-hearing-justice-thomas-can-rarely-be-heard.html">famously said</a> he would serve for 43 years. There are another dozen years until his promise is met, should he choose to keep it at all. </p>
<h2>Partisanship problems</h2>
<p>Justices change during their decades on the bench, <a href="https://mqscores.lsa.umich.edu/">research shows</a>.</p>
<p>Justices who at the time of their confirmation espoused views that reflected the general public, the Senate and the president who appointed them tend to <a href="https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1113&context=nulr_online">move away</a> from those <a href="https://journals.sagepub.com/doi/abs/10.1177/106591290005300306">preferences over time</a>. They become <a href="https://doi.org/10.1017/s002238160808081x">more ideological</a>, focused on putting their own <a href="https://www.cambridge.org/core/books/supreme-court-and-the-attitudinal-model-revisited/5982FCCD061EB38DBB870DBC5E9A3197">policy preferences</a> into law.</p>
<p>Other Americans’ <a href="https://www.journals.uchicago.edu/doi/abs/10.1086/706889">political preferences</a> tend to be stable throughout their lives. </p>
<p>The consequence is that Supreme Court justices may no longer reflect the America they preside over. </p>
<p>This can be problematic. </p>
<p>If the court were to routinely stray too far from the public’s values, <a href="https://www.washingtonpost.com/politics/2020/10/23/why-americans-are-perfectly-willing-undermine-integrity-independence-supreme-court/">the public could reject</a> its dictates by refusing to follow the court’s decisions. The Supreme Court relies on public confidence to <a href="https://doi.org/10.2307/2111585">maintain its legitimacy</a>. In addition to public resistance to its decisions, if the court lost its legitimacy, lower court judges and legislative and executive branch actors might resist implementing the court’s rulings. </p>
<p>Life tenure has also turned staffing the Supreme Court into an increasingly <a href="https://www.pbs.org/newshour/nation/is-the-hyper-partisan-supreme-court-confirmation-process-the-new-normal">partisan process</a>, politicizing one of the <a href="https://www.jstor.org/stable/25791761">nation’s most powerful institutions</a>.</p>
<p>In the 1980s and 1990s, Supreme Court nominees could generally expect broad, bipartisan <a href="https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm">support in the Senate</a>. Today, judicial confirmation votes are almost <a href="https://www.pewresearch.org/fact-tank/2018/03/07/federal-judicial-picks-have-become-more-contentious-and-trumps-are-no-exception/">strictly down party lines</a>. </p>
<p>Public support for judicial nominees is likewise shaped by <a href="https://news.gallup.com/poll/322232/amy-coney-barrett-seated-supreme-court.aspx">partisanship</a>. Simply put, Democrats are much more supportive of nominees appointed by Democratic presidents, and Republicans are much more supportive of nominees appointed by Republican presidents. </p>
<p>Life tenure can turn supposedly independent judges into <a href="https://www.latimes.com/opinion/op-ed/la-oe-ward-kennedy-retirement-20180629-story.html">political players</a> who <a href="https://www.tristatehomepage.com/news/justice-ginsburgs-fervent-last-wish-was-to-not-be-replaced-until-a-new-president-is-installed-report-says/">attempt to time their departures</a> to secure their <a href="https://www.nytimes.com/2020/09/21/magazine/ginsburg-successor-obama.html">preferred successors</a> – and this may have factored in to Justice Stephen Breyer’s decision this year under President Joe Biden, a Democrat. </p>
<p>Biden appointed Justice Ketanji Brown Jackson, one of Breyer’s <a href="https://apnews.com/article/Ketanji-Brown-Jackson-biden-supreme-court-nominee-32f77fe08d7cf64af95591668a0aaa41">former clerks</a>, to replace him.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Supreme Court Justice Anthony Kennedy is presented a medal." src="https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=507&fit=crop&dpr=1 754w, https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=507&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/408268/original/file-20210624-25-1hygzzd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=507&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Justice Anthony Kennedy receiving the 2019 Liberty Medal from Justice Neil Gorsuch.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/retired-supreme-court-justice-anthony-kennedy-is-presented-news-photo/1178587667?adppopup=true">William Thomas Cain/Getty Images</a></span>
</figcaption>
</figure>
<h2>The proposed solution</h2>
<p>Many <a href="https://blogs.chicagotribune.com/files/supctlawcalabresi.pdf">Supreme Court</a> <a href="https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2009%2F02%2Fjudiciary-act-of-2009.do">experts</a> have coalesced around a <a href="https://www.amacad.org/sites/default/files/publication/downloads/2020-Democratic-Citizenship_Our-Common-Purpose_0.pdf">solution</a> to these problems: <a href="https://fixthecourt.com/fix/term-limits/">staggered 18-year terms</a> with a <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2017/03/23/why-not-limit-neil-gorsuch-and-all-supreme-court-justices-to-18-year-terms/">vacancy automatically occurring</a> every two years <a href="https://www.theatlantic.com/politics/archive/2014/05/its-time-for-term-limits-for-the-supreme-court/371415/">in nonelection years</a>. </p>
<p>This system would promote <a href="https://www.brennancenter.org/our-work/analysis-opinion/saving-supreme-court">judicial legitimacy</a>, they argue, by taking departure decisions <a href="https://www.cnn.com/2019/03/20/politics/sandra-day-oconnor-supreme-court-evan-thomas-book">out of the justices’ hands</a>. </p>
<p>It would help insulate the court from becoming a <a href="https://www.nytimes.com/2016/05/19/us/politics/donald-trump-supreme-court-nominees.html">campaign issue</a> because <a href="https://www.npr.org/2018/06/29/624467256/what-happened-with-merrick-garland-in-2016-and-why-it-matters-now">vacancies would no longer arise</a> during election years. Indeed, even if a justice died during an election year, a lower court judge could be temporarily elevated as a replacement. Term limits would also <a href="https://www.reuters.com/article/us-usa-court-termlimits/democrats-prepare-bill-limiting-u-s-supreme-court-justice-terms-to-18-years-idUSKCN26F3L3">preserve judicial independence</a> by shielding the court from political calls to fundamentally alter the institution. </p>
<p>Partisanship would still tinge the selection and confirmation of judges by the president and Senate and ideological extremists could still reach the Supreme Court. But they would be limited to 18-year terms. </p>
<h2>Instituting life tenure</h2>
<p>The U.S. Supreme Court is one of the world’s few high courts whose members have life tenure. </p>
<p><a href="https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780198810230.001.0001/oxfordhb-9780198810230-e-39">Almost all democratic nations</a> have either <a href="https://blogs.chicagotribune.com/files/supctlawcalabresi.pdf">fixed terms or mandatory retirement ages</a> for their top judges, including the <a href="https://www.supremecourt.uk/docs/scotus-and-uksc-comparative-learning-tool.pdf">United Kingdom</a>. </p>
<p>Except for <a href="https://www.providencejournal.com/news/20200118/changes-ahead-for-ris-aging-supreme-court">Rhode Island</a>, all U.S. states either have <a href="https://www.ncsc.org/information-and-resources/trending-topics/trending-topics-landing-pg/mandatory-judicial-retirement">mandatory retirement ages</a> or let voters choose when judges leave the bench through <a href="https://www.routledge.com/Judicial-Elections-in-the-21st-Century/Bonneau-Hall/p/book/9781138185890">judicial elections</a>. </p>
<p>Even before Dobbs, polling consistently showed <a href="https://www.reuters.com/article/us-usa-court-poll/americans-favor-supreme-court-term-limits-reuters-ipsos-poll-idUSKCN0PU09820150720">a large bipartisan</a> <a href="https://www.reuters.com/business/legal/most-americans-want-end-lifetime-supreme-court-appointments-2021-04-18/">majority</a> of Americans supported ending life tenure for Supreme Court justices. </p>
<p>This view comes amid reports of <a href="https://fivethirtyeight.com/features/why-the-supreme-courts-reputation-is-at-stake/">eroding public confidence</a> as the court routinely issues <a href="https://slate.com/news-and-politics/2020/03/kansas-v-garcia-scotus-ideological-splits.html">decisions down partisan lines</a> on the day’s most controversial issues. </p>
<p>Although judges’ ideology has <a href="https://press.princeton.edu/books/hardcover/9780691175522/ideology-in-the-supreme-court">long influenced</a> Supreme Court decisions, today’s court is <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2018/06/29/it-took-conservatives-50-years-to-get-a-reliable-majority-on-the-supreme-court-here-are-3-reasons-why/">unusual</a> because all the conservative justices are Republicans and all the liberal justices are Democrats. In the past, it was <a href="https://global.oup.com/academic/product/the-company-they-keep-9780190278052?cc=us&lang=en&">not uncommon</a> to have liberal-leaning justices who were appointed by Republican presidents, and conservative-leaning justices who were appointed by Democratic presidents. </p>
<p>In April 2021, President Biden <a href="https://www.nytimes.com/2021/04/15/us/politics/supreme-court-commission.html">formed a committee</a> to examine <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/">reforming the Supreme Court</a>, including term-limiting justices. </p>
<p>Some argue that <a href="https://crsreports.congress.gov/product/pdf/R/R46731">to end the justices’ life tenure</a> would require a constitutional amendment necessitating approval from two-thirds of both houses of Congress and three-fourths of U.S. states. But there is a way to enact term limits short of amendment. </p>
<p>The Constitution does not speak of “life tenure” per se. It states only <a href="https://www.law.cornell.edu/constitution-conan/article-3/section-1/good-behavior-clause-overview">that justices serve</a> “during good behavior” and does not specify the type of work that justices will do. </p>
<p>As a result, ordinary legislation – such as that <a href="https://thehill.com/homenews/house/3575349-democrats-introduce-bill-to-enact-term-limits-for-supreme-court-justices/">introduced</a> this week – could be passed by a majority of both houses of Congress that would require justices to take “senior status” at the end of their 18-year terms. </p>
<p>Senior status is <a href="https://www.uscourts.gov/faqs-federal-judges#faq-What-is-a-senior-judge">already an option</a> for justices who qualify for it and wish to step down from their Supreme Court duties. Senior status allows them either to retire or to sit on a lower court with undiminished salary for the remainder of their careers. </p>
<p>All that is needed, <a href="https://www.amacad.org/ourcommonpurpose/recommendation-1-8">these proponents argue</a>, is a change in the existing retirement statute that requires senior status after 18 years on the court. </p>
<p>And while <a href="https://crsreports.congress.gov/product/pdf/R/R46731">there are questions</a> over whether term limits via statute are constitutional, or whether the Supreme Court justices who would be affected by them are the appropriate body to make such a determination, the larger question is whether there is or will be the political will in Congress to enact them. </p>
<p><em>This story has been updated from <a href="https://theconversation.com/should-the-supreme-court-have-term-limits-159620">the original version</a> published on July 6, 2021.</em></p><img src="https://counter.theconversation.com/content/187040/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors 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>Unlike in most countries, US Supreme Court justices enjoy life tenure. Some legal scholars believe that centuries-old custom, meant to protect judicial independence, no longer serves the public.Paul M. Collins Jr., Professor of Legal Studies and Political Science, UMass AmherstArtemus Ward, Professor of Political Science, Northern Illinois 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/1834862022-06-23T21:28:28Z2022-06-23T21:28:28ZSupreme Court sweeps aside New York’s limits on carrying a gun, raising Second Amendment rights to new heights<figure><img src="https://images.theconversation.com/files/470640/original/file-20220623-51375-fvsiiw.jpg?ixlib=rb-1.1.0&rect=312%2C123%2C3615%2C1937&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A U.S. Supreme Court decision released on Jun 23, 2022, loosens state restrictions on carrying concealed firearms.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/confiscated-guns-are-on-display-during-a-press-conference-news-photo/1235713352?adppopup=true">Bryan R. Smith/AFP via Getty Images</a></span></figcaption></figure><p>With its decision in <a href="https://www.oyez.org/cases/2021/20-843">New York State Rifle & Pistol v. Bruen</a> on June 23, 2022, the Supreme Court has announced that the Second Amendment is not a second-class right.</p>
<p>The core argument of the decision is that gun rights are to be treated the same as other hallowed rights like the <a href="https://constitution.congress.gov/constitution/amendment-1/">freedom of speech or freedom of religion recognized in the First Amendment</a>. </p>
<p>For most of the history of the court, Second Amendment rights have been seen as <a href="https://www.washingtonpost.com/national-security/2021/11/03/supreme-court-gun-rights-live-updates/">distinct, more dangerous and thus more open to regulation</a>. Now, the majority of justices has invoked a major change, with implications for many rights and regulations in American society.</p>
<h2>The case</h2>
<p>To get a license to carry a <a href="https://theconversation.com/supreme-court-appears-to-suggest-right-to-guns-at-home-extends-to-carrying-them-in-public-too-171263">concealed firearm in New York state,</a> a citizen had to show a “proper cause.” </p>
<p>In practice, this meant that a local licensing official had to <a href="https://www.ny.gov/services/how-obtain-firearms-license">agree that the person had a “special need</a>,” such as facing a current threat or recurring danger.</p>
<p>California, Hawaii, Maryland, Massachusetts and New Jersey also employ similar standards, known as “may issue” laws. Many other states instead have a <a href="https://concealedguns.procon.org/state-by-state-concealed-carry-permit-laws/">“shall issue”</a> regime where local officials must issue a license to carry a concealed firearm as long as the person does not have a disqualifying characteristic, including a felony conviction, mental illness or a restraining order against them.</p>
<p>In the case just decided by the Supreme Court, two applicants living in upstate New York, Robert Nash and Brandon Koch, were denied unrestricted concealed carry licenses because <a href="https://everytownlaw.org/wp-content/uploads/sites/5/2021/04/NYSRPA-v.-Beach-MTD-Decision-12.17.18.pdf">they had no special need other than personal protection</a>. They insist that law denies their constitutional rights.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/470659/original/file-20220623-51568-rmnd4k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with a sign advocating gun rights, near two yellow 'Don't tread on me' flags and in front of a large building." src="https://images.theconversation.com/files/470659/original/file-20220623-51568-rmnd4k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/470659/original/file-20220623-51568-rmnd4k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=444&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470659/original/file-20220623-51568-rmnd4k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=444&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470659/original/file-20220623-51568-rmnd4k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=444&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470659/original/file-20220623-51568-rmnd4k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=558&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470659/original/file-20220623-51568-rmnd4k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=558&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470659/original/file-20220623-51568-rmnd4k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=558&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Gun rights activists outside the New York State Capitol in 2018.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GunRightsRallies-NewYork/668fdf2ccbee442088195d256de6c208/photo?Query=gun%20rights%20rally%20new%20york&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=160&currentItemNo=46">AP Photo/Hans Pennink</a></span>
</figcaption>
</figure>
<h2>The history of Second Amendment rulings</h2>
<p>For most of American history, the <a href="https://constitutioncenter.org/interactive-constitution/interpretation/amendment-ii/interps/99">court ignored the Second Amendment</a>. The <a href="https://www.oyez.org/cases/1900-1940/307us174">first major ruling</a> on its meaning did not come until the 1930s, and the court did not address whether the amendment recognized a fundamental individual right until 2008 in the landmark <a href="https://www.oyez.org/cases/2007/07-290">D.C. v. Heller</a>.</p>
<p>That ruling, written by the famously conservative Justice Antonin Scalia, recognized a right to keep a firearm in the home. How far the right extended into public spaces was not clear. </p>
<p>Scalia wrote that “like most rights, the right secured by the Second Amendment is <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=57">not unlimited</a>.” That meant “longstanding prohibitions on the possession of firearms by felons and the mentally ill” or “prohibitions on carrying concealed weapons” were “presumptively lawful.”</p>
<h2>‘A fundamental right’</h2>
<p>The new ruling establishes that the gun right recognized by the Second Amendment is a fundamental right like any other and must be accorded the highest level of protection. Its inherently dangerous nature does not mean that the right is interpreted or limited differently.</p>
<p>Justice Clarence Thomas – perhaps the most conservative justice on the court – wrote the majority opinion. In Thomas’ view, we do not need to ask prior permission of a government official to exercise a constitutional right: “We know of no other constitutional right that an individual may exercise only after demonstrating to government officials some special need.” Thomas concludes that the Bill of Rights – including the Second Amendment – “demands our unqualified deference.”</p>
<p>This means that a local government may regulate but not eradicate the core right, including the ability to carry a concealed firearm. Any allowable regulation demands a compelling state interest, with convincing evidence of the need and effectiveness of the regulation.</p>
<h2>The constitutional case for stronger regulation</h2>
<p>The dissenters were led by Justice Stephen Breyer, who <a href="https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf#page=84">opened his dissent</a> with the number of Americans killed with firearms in 2020 – 45,222. His longstanding view is that the Second Amendment deals with a more dangerous right, and thus it is more open to being regulated.</p>
<p>In Breyer’s view, the majority’s ruling “refuses to consider the government interests that justify a challenged gun regulation.” Breyer concludes that “The primary difference between the Court’s view and mine is that I believe the Amendment allows States to take account of the serious problems posed by gun violence … I fear that the Court’s interpretation ignores these significant dangers and leaves States without the ability to address them.”</p>
<figure class="align-center ">
<img alt="An elderly Black and an elderly white man stand next to each other as onlookers applaud." src="https://images.theconversation.com/files/470630/original/file-20220623-52339-bsu0ih.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/470630/original/file-20220623-52339-bsu0ih.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470630/original/file-20220623-52339-bsu0ih.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470630/original/file-20220623-52339-bsu0ih.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470630/original/file-20220623-52339-bsu0ih.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470630/original/file-20220623-52339-bsu0ih.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470630/original/file-20220623-52339-bsu0ih.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">
<figcaption>
<span class="caption">Seen here with GOP leader Mitch McConnell at the conservative Heritage Foundation, Supreme Court Justice Clarence Thomas wrote the majority opinion to expand gun rights.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/associate-supreme-court-justice-clarence-thomas-looks-on-as-news-photo/1236038692?adppopup=true">Drew Angerer/Getty Images</a></span>
</figcaption>
</figure>
<h2>New reading of the Constitution</h2>
<p>The majority’s view of the Second Amendment is part of a dramatic shift in the court’s understanding of the Constitution. That shift reflects the recent arrival of a <a href="https://www.supremecourt.gov/about/biographies.aspx">conservative justice, Amy Coney Barrett</a>, increasing the previous majority of five to a supermajority of six justices.</p>
<p>The new supermajority, all nominated by Republican presidents, insists that the Constitution is not <a href="https://www.law.uchicago.edu/news/living-constitution">a living document that evolves as the beliefs and values of society shift</a>. That was the longtime perspective more influential on the court since <a href="https://library.cqpress.com/cqresearcher/document.php?id=cqresrre1978062300">the rights revolution of the 1960s and 1970s</a>, but now held by only a minority of justices. </p>
<p>The conservative majority believes the Constitution should be read in the original fashion of how the text itself would have been understood by those who wrote and ratified it. <a href="https://constitutioncenter.org/interactive-constitution/white-papers/on-originalism-in-constitutional-interpretation">This is often called “originalism.”</a> </p>
<p>The ramifications of this shift are just becoming clear. Beyond this gun ruling, the effects will continue to be seen in decisions on abortion, religion, criminal justice, environmental regulation and many other issues.</p>
<p>As a <a href="https://doi.org/10.1007/978-3-030-88641-7">close observer of the Supreme Court</a>, I believe the briefest way to describe the change in the court’s understanding of rights is that the explicit protections in the Bill of Rights – such as free exercise of religion, freedom of speech, freedom of the press – will be given greater weight and deference, while the additional protections outside of the Bill of Rights, which have been recognized by the court over time – abortion, <a href="https://theconversation.com/privacy-isnt-in-the-constitution-but-its-everywhere-in-constitutional-law-183204">privacy</a>, same-sex marriage – will not be accorded the same protection and respect.</p>
<p>The originalist reading means that the enumerated rights of the Amendments, including the Second Amendment, are not up for majority rule. They are core, established rights. </p>
<p>But other public debates on issues outside of the scope of the Bill of Rights – including abortion – are matters left to the decisions of state legislatures. This is a dramatic shift in the meaning and application of the U.S. Constitution.</p>
<h2>The state of gun regulation</h2>
<p>The ruling by the new majority does not insist that states adopt the most unrestricted standards for concealed-carry that states like Maine or <a href="https://www.cnn.com/2021/09/01/us/texas-open-carry-laws/index.html">Texas</a> have. Only the states with the most restrictive gun laws, including California and New York, will be forced to change policies.</p>
<p>Justice Brett Kavanaugh wrote a separate opinion to highlight that “the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense.” He emphasized that, “properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.”</p>
<p>The majority opinion specifically states that concealed carry of firearms in sensitive places can be regulated: “We can assume it settled” that prohibitions on concealed carry in sensitive locations, including historically allowed ones such as “legislative assemblies, polling places, and courthouses,” as well as other “new and analogous sensitive places are constitutionally permissible.” This likely includes government buildings, stadiums, churches and schools.</p>
<h2>‘Alter American law’</h2>
<p>This landmark ruling on the meaning and application of the Second Amendment changes the law in several states that would prefer to impose greater restrictions on the concealed carry of firearms. </p>
<p>More broadly, it announces a major shift in how the court will understand the nature of rights under the Constitution. </p>
<p>The liberal justices in the waning minority believe that the new approach is changing American constitutional law “<a href="https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf#page=135">without considering the potentially deadly consequences</a>.” The new majority sees the Constitution and Bill of Rights in a more uncompromising light that will alter American law in the coming years.</p><img src="https://counter.theconversation.com/content/183486/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>The gun rights decision from the conservative majority on the Supreme Court signals a fundamental change in how the court reads the Constitution.Morgan Marietta, Associate Professor of Political Science, UMass LowellLicensed 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/1712632021-11-04T21:14:11Z2021-11-04T21:14:11ZSupreme Court appears to suggest right to guns at home extends to carrying them in public too<figure><img src="https://images.theconversation.com/files/430307/original/file-20211104-25-weax5m.jpg?ixlib=rb-1.1.0&rect=6%2C0%2C4069%2C2719&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Supporters of gun controls rally outside the Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supporters-of-gun-control-hold-signs-in-front-of-supporters-news-photo/1351091020?adppopup=true">Joshua Roberts/Getty Images</a></span></figcaption></figure><p>Faced with the question “does the constitutional right to possess a gun extend outside the home?” the majority of the Supreme Court appears to be heading toward the answer “yes.”</p>
<p>On Nov. 3, 2012, justices heard oral arguments over New York’s restrictions on the carrying of firearms in public. <a href="https://www.scotusblog.com/2021/11/majority-of-court-appears-dubious-of-new-york-gun-control-law-but-justices-mull-narrow-ruling/">Supreme Court watchers</a> <a href="https://www.washingtonpost.com/politics/courts_law/gun-rights-case-supreme-court/2021/11/03/6b9a75d8-3c13-11ec-a493-51b0252dea0c_story.html">reported that</a> conservative justices – who make up the bulk of the court – <a href="https://www.nytimes.com/2021/11/03/us/politics/supreme-court-guns-second-amendment.html">appeared to be of the view</a> that the state’s laws contravene individuals’ right to self-defense outside of their own property.</p>
<p>“Why isn’t it good enough to say I live in a violent area, and I want to be able to defend myself?” Justice <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-843_8n5a.pdf#page=71">Brett Kavanaugh wondered</a>.</p>
<p>The nine-member panel is far from the first to ponder such questions. The crux of the <a href="https://theconversation.com/first-major-second-amendment-case-before-the-supreme-court-in-over-a-decade-could-topple-gun-restrictions-166703">issue before the Supreme Court</a> is captured by a debate that Thomas Jefferson had with himself at the time of the founding.</p>
<p>When Jefferson was drafting a proposed constitution for his home state of Virginia in June 1776, he <a href="https://www.monticello.org/site/research-and-collections/no-freeman-shall-be-debarred-use-arms#footnote3_h70lbu1">suggested a clause</a> that read “No freeman shall ever be debarred the use of arms.” </p>
<p>In the second draft, he added in brackets, “[within his own lands or tenements].”</p>
<p>Jefferson’s debate with himself captures the question posed to the court: Is the purpose of the right to “keep and bear arms” the protection of a citizen’s “own lands,” or is it self-protection in general? Does the Second Amendment to the U.S. Constitution recognize a right to keep and bear arms in the home, or a right to “keep” firearms in the home and also “bear” them outside of the home for protection in society? </p>
<p>The plaintiffs in the case currently before the justices, <a href="https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-bruen/">New York Rifle & Pistol Association v. Bruen</a>, want the court to strike down the state’s restrictions and allow citizens who meet basic requirements, such as having no criminal convictions, to carry concealed weapons.</p>
<figure class="align-center ">
<img alt="A man with a tattoo that reads 'We the People' carrying a gun in a leather holster" src="https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&rect=22%2C9%2C3035%2C1894&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=378&fit=crop&dpr=1 600w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=378&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=378&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=475&fit=crop&dpr=1 754w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=475&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=475&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Will an upcoming Supreme Court ruling loosen gun laws across the country?</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Texas-Handguns/a65f863ca87e4b59b68b98d8db568bc1/photo?Query=guns%20open%20carry&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=280&currentItemNo=5">AP Photo/Eric Gay</a></span>
</figcaption>
</figure>
<h2>Gun in the house</h2>
<p>There are surprisingly few <a href="https://theconversation.com/first-major-second-amendment-case-before-the-supreme-court-in-over-a-decade-could-topple-gun-restrictions-166703">Supreme Court rulings</a> on the meaning of the Second Amendment. </p>
<p>The question of whether the amendment recognizes a fundamental right – on par with free speech or free exercise of religion – was not decided until 2008 in the landmark ruling in <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf">District of Columbia v. Heller</a>. For the first time, the court recognized a clear individual right to bear arms for the purpose of self-defense. This <a href="http://content.time.com/time/specials/packages/article/0,28804,2036448_2036452_2036455,00.html">deeply disputed 5-4 ruling</a> was expanded <a href="https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf">two years later to cover state laws</a>.</p>
<p>The Heller ruling stated that the Second Amendment’s right is like the others in the <a href="https://www.archives.gov/founding-docs/bill-of-rights-transcript">Bill of Rights</a>, which cannot be violated without the most compelling reasons. The amendment, the ruling says, “surely <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=66">elevates above all other interests</a> the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The Washington, D.C., law intended to reduce crime cannot ban firearms in “<a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=59">the home</a>, where the need for defense of self, family, and property is most acute.”</p>
<p>That ruling – written by Justice Antonin Scalia, who died in 2016 and was <a href="https://www.npr.org/2017/04/07/522902281/senate-confirms-gorsuch-to-supreme-court">replaced by Justice Neil Gorsuch</a> – also recognized that “like most rights, the right secured by the Second Amendment is <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=57">not unlimited</a>.” Scalia cited regulations like “longstanding prohibitions on the possession of firearms by felons and the mentally ill” or “prohibitions on carrying concealed weapons” as “presumptively lawful.”</p>
<p>The principal dissent was written by Justice Stephen Breyer, the only dissenter in Heller still serving on the court. He emphasized the balance between core rights and the needs for public safety. </p>
<p>“If a resident has a <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=146">handgun in the home</a> that he can use for self-defense,” wrote Breyer, “then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence.”</p>
<p>During oral arguments in the current case before the Supreme Court, Breyer <a href="https://www.washingtonpost.com/politics/courts_law/gun-rights-case-supreme-court/2021/11/03/6b9a75d8-3c13-11ec-a493-51b0252dea0c_story.html">expressed concern over loosening restrictions</a>, <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-843_8n5a.pdf#page=36">suggesting there were legitimate concern</a> over “gun-related chaos” resulting from having more guns in public places.</p>
<h2>Concealed carry laws</h2>
<p>State governments follow very different procedures for determining who will be allowed to carry a concealed firearm outside of the home. </p>
<p>“<a href="https://worldpopulationreview.com/state-rankings/open-carry-states">Open carry</a>,” or just having a handgun in plain sight on a belt holster or carrying a long gun (rifle or shotgun), is actually legal in many places. The general idea is that carrying openly would be done only by an honest actor, so less regulation is needed. “Concealed carry,” having a hidden weapon in a pocket or under a jacket, is far more restricted. </p>
<p>At one end of the continuum are near-bans on what are called “concealed carry licenses,” while at the other end are states in which no license is needed. These laws are referred to as “<a href="https://www.cnn.com/2021/09/01/us/texas-open-carry-laws/index.html">constitutional carry</a>,” meaning the U.S. Constitution itself is a citizen’s <a href="https://concealedguns.procon.org/state-by-state-concealed-carry-permit-laws/">license to carry</a> a firearm. </p>
<p>In between these two positions are rules known as “shall issue,” whereby the government issues a license if the applicant meets the requirements such as having no felony convictions, or “may issue,” which gives the government discretion to deny a license based on perceptions of fitness.</p>
<p>New York state has “may issue” laws with <a href="https://codes.findlaw.com/ny/penal-law/pen-sect-400-00.html">stringent requirements</a>, which in practice allow almost no licenses to be issued. Applicants must demonstrate a “<a href="https://sheriff.ongov.net/wp-content/uploads/2016/06/propercauseforconcealedcarry.pdf">proper cause</a>” – such as being in imminent danger from a known source – which effectively eliminates ordinary applicants. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A head-and-shoulders photo of the late Supreme Court Justice Antonin Scalia." src="https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.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">The 2008 Heller ruling, written by Justice Antonin Scalia, pictured here, stated that the Second Amendment is a right like the others in the Bill of Rights.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-associate-justice-antonin-scalia-testifies-news-photo/100024252?adppopup=true">Chip Somodevilla/Getty Images</a></span>
</figcaption>
</figure>
<h2>Regulation or eradication</h2>
<p>The strongest argument in the <a href="https://www.supremecourt.gov/DocketPDF/20/20-843/164031/20201217110211298_2020-12-17%20NRA-Corlett%20Cert%20Petition%20FINAL.pdf">gun owners’ brief</a> to the Supreme Court relates to New York’s insistence that citizens show an exceptional or extraordinary need to exercise a right that the court has recognized as fundamental.</p>
<p>No other fundamental right, such as freedom of speech or religion, is limited to people who can demonstrate special circumstances. Instead, fundamental rights are understood to be held by ordinary people in ordinary circumstances.</p>
<p>As Chief Justice John Roberts <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-843_8n5a.pdf#page=94">asked during oral arguments</a> on Nov. 3: “You don’t have to say, when you’re looking for a permit to speak on a street corner or whatever, that your speech is particularly important. So why do you have to show in this case, convince somebody, that you’re entitled to exercise your Second Amendment right?”</p>
<p>The strongest argument in the <a href="https://www.supremecourt.gov/DocketPDF/20/20-843/169604/20210222170827872_20-843_Brief%20in%20Opposition.pdf">opposing brief</a> from the New York State Police is federalism – the long-standing conservative argument that state lawmakers hold wide latitude to determine their own regulations to serve as “<a href="https://www.supremecourt.gov/DocketPDF/20/20-843/169604/20210222170827872_20-843_Brief%20in%20Opposition.pdf#page=33">laboratories of experimentation</a>,” as Justice Louis Brandeis <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep285/usrep285262/usrep285262.pdf#page=50">phrased it</a> in 1932. The federalist principle suggests that the court should defer to the judgment of state legislatures representing the needs of local citizens.</p>
<p>On Nov. 3, Justice Sonia Sotomayor, one of the most liberal justices on the court, immediately <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-843_8n5a.pdf#page=19">challenged</a> the plaintiff’s advocate about the role of federalism: “Before recent times, there were so many different regulations. What it appears to me in the history and tradition of carrying weapons is that states get a lot of deference on this.”</p>
<p>As a <a href="https://doi.org/10.1007/978-3-030-53851-4">close observer of the Supreme Court</a>, I believe the justices’ reactions to the arguments suggest an outcome to the case in which the majority rules that a state can limit but not eliminate the core purposes of the protected right.</p>
<p>The Heller decision identifies at least one purpose as self-defense. The question is whether a specific concealed carry law creates a burden so strong that it becomes equivalent to eradication of the right to self-protection, or whether it imposes a legitimate public safety regulation that still maintains the core right for citizens who assert it.</p>
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<h2>Individual rights vs. fellow citizens</h2>
<p>The most permissive laws that allow unrestricted concealed carry are almost certainly not mandated by the Constitution.</p>
<p>“Shall issue” laws, which allow states to screen applicants for flaws but compel local governments to provide a concealed carry license to qualified citizens, are likely to be seen even by the conservative justices as legitimate regulations that do not create unconstitutional burdens. </p>
<p>However, the current court appears to be viewing a “may issue” law like New York’s, which allows the government to deny a license to nearly every applicant, as creating a burden that blocks the core of the right to self-protection where ordinary citizens are exposed to greater threats – outside the home.</p>
<p><em>Editor’s note: This article is an <a href="https://theconversation.com/gun-rights-at-the-supreme-court-justices-will-consider-if-the-fundamental-right-to-keep-a-gun-at-home-applies-to-carrying-weapons-in-public-169235">updated version of a story</a> that was published on Nov. 1, 2021.</em></p><img src="https://counter.theconversation.com/content/171263/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>The Supreme Court ruled in 2008 that you have a constitutional right to have a gun in your home. Now, the justices will consider how far outside of the home that right extends.Morgan Marietta, Associate Professor of Political Science, UMass LowellLicensed 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/1629822021-06-21T12:20:19Z2021-06-21T12:20:19ZWhat’s next for health care reform after the Supreme Court rejects ACA’s most recent challenge<figure><img src="https://images.theconversation.com/files/407334/original/file-20210620-26-fwakz2.jpg?ixlib=rb-1.1.0&rect=0%2C37%2C5056%2C3322&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court has pushed back three challenges to the Affordable Care Act.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtHealthCare/af7a18ea1fc84b39af301fa84aec0672/photo?Query=Obamacare%20Supreme%20Court&mediaType=photo,graphic&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=273&currentItemNo=9">AP Photo/Alex Brandon</a></span></figcaption></figure><p>The U.S. Supreme Court upheld the Affordable Care Act for the third time on June 17, 2021, this time in a case called <a href="https://www.oyez.org/cases/2020/19-840">California v. Texas</a>. With seven justices holding that the states and individual plaintiffs <a href="https://www.nytimes.com/2021/06/18/us/politics/supreme-court-conservatives-liberals.html">lacked standing to sue</a> because they failed to show that they had suffered a <a href="https://www.nytimes.com/2021/06/17/us/obamacare-supreme-court.html">direct injury</a>, the Court delivered its strongest defense of the law to date. The key parts of the previous decisions had been <a href="https://www.nytimes.com/2012/06/29/us/supreme-court-lets-health-law-largely-stand.html">5-4</a> and <a href="https://www.nytimes.com/2015/06/26/us/obamacare-supreme-court.html">6-3</a>, respectively.</p>
<p>This result was not unpredicted. Indeed, <a href="https://theconversation.com/while-the-supreme-court-deliberates-on-the-affordable-care-act-congress-and-the-white-house-may-act-149891">as I wrote in November</a>, legal experts called the arguments brought by the states and individual plaintiffs challenging the ACA “<a href="https://reason.com/volokh/2020/11/10/thoughts-on-todays-oral-argument-in-california-v-texas-the-obamacare-severability-case/">weak</a>” and “<a href="https://www.theatlantic.com/ideas/archive/2019/07/texas-v-us-rise-know-nothing-judge/593959/">ridiculous</a>.” </p>
<p>And, <a href="https://theconversation.com/while-the-supreme-court-deliberates-on-the-affordable-care-act-congress-and-the-white-house-may-act-149891">as I noted at the time</a>, the oral arguments suggested that the Court’s key swing votes were <a href="https://news.bloomberglaw.com/us-law-week/supreme-court-shaped-by-trump-poised-to-hear-challenge-to-aca">largely skeptical</a> of the challengers’ legal arguments. What was more potentially surprising about the 7-2 final result were the votes of Justices Clarence Thomas and Amy Coney Barrett, as they joined Chief Justice John Roberts, and Justices Stephen Breyer, Elena Kagan, Brett Kavanaugh and Sonia Sotomayor in voting to deny the challenge. </p>
<p>Specifically, the litigation centered around whether the individual mandate penalty – the fine an individual must pay for not carrying health insurance – was made unconstitutional when Congress <a href="https://www.nytimes.com/2017/12/18/us/politics/tax-cut-obamacare-individual-mandate-repeal.html">“zeroed out” the monetary penalty in 2017</a>. Two individual plaintiffs and a group of states led by Texas argued that they were injured as a result of the now-unenforceable mandate, and that the mandate – now, arguably, no longer a tax because it was not revenue-generating – could no longer be upheld as constitutional. But the Court found that the challengers had failed to state a cognizable injury and thus, <a href="https://www.usatoday.com/story/news/politics/2021/06/17/supreme-court-rejects-obamacare-challenge-brought-texas/4153925001/">lacked standing</a>.</p>
<p>The decision’s biggest fireworks came from Justice Samuel Alito, whose <a href="https://supreme.justia.com/cases/federal/us/593/19-840/#tab-opinion-4440774">strongly worded dissent</a> was joined by Justice Neil Gorsuch. Alito found that the challengers did experience the type of injury required, agreeing with the argument that an unenforceable individual mandate penalty – <a href="https://www.nytimes.com/2012/06/29/us/supreme-court-lets-health-law-largely-stand.html">upheld as a constitutional tax in National Federation of Independent Businesses v. Sebelius</a> – was no longer justifiable, finding it both unconstitutional and not severable, or able to be excised, from the rest of the law. Alito’s opinion, which would have struck down the entire ACA, was cutting in its criticism, perhaps reminding Court watchers of the <a href="https://www.nytimes.com/2016/02/16/arts/recalling-scalia-a-literary-stylist-who-scorned-jiggery-pokery.html">sharp dissents of the late Justice Antonin Scalia</a>.</p>
<p>Indeed, even though this legal challenge was weaker than previous ones, the ACA still did hang in the balance – with <a href="https://www.nytimes.com/article/supreme-court-obamacare-case.html">21 million people at direct risk of losing their health insurance</a>, and millions <a href="https://www.nytimes.com/article/supreme-court-obamacare-case.html">more at risk of losing protection</a> against preexisting condition discrimination.</p>
<p>As a <a href="https://law.utk.edu/directory/zack-buck/">health law professor</a> who <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1713816">studies and writes about the ACA and health reform</a>, I think it is worthwhile to look ahead to what comes next now that the newest challenge has been laid to rest.</p>
<figure class="align-center ">
<img alt="President Barack Obama is surrounded by onlookers as he signs a document. Joe Biden, Nancy Pelosi and a young Black boy in a vest and tie are part of the crowd." src="https://images.theconversation.com/files/407336/original/file-20210620-35539-mzb63.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/407336/original/file-20210620-35539-mzb63.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=327&fit=crop&dpr=1 600w, https://images.theconversation.com/files/407336/original/file-20210620-35539-mzb63.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=327&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/407336/original/file-20210620-35539-mzb63.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=327&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/407336/original/file-20210620-35539-mzb63.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=411&fit=crop&dpr=1 754w, https://images.theconversation.com/files/407336/original/file-20210620-35539-mzb63.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=411&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/407336/original/file-20210620-35539-mzb63.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=411&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">President Barack Obama signs the Affordable Care Act in 2010.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/HealthOverhaulLawsuit/e33c3840d72f4ade8b1cb0e077471cf7/photo?Query=Obama%20signs%20Affordable%20Care%20Act&mediaType=photo,graphic&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=251&currentItemNo=3">AP Photo/J. Scott Applewhite</a></span>
</figcaption>
</figure>
<h2>An inflection point</h2>
<p>The summer of 2021 seems to present a very different political environment for the ACA. Now <a href="https://www.nytimes.com/2010/03/24/health/policy/24health.html">more than 11 years after President Obama signed the ACA</a>, the law has experienced its most <a href="https://www.kff.org/interactive/kff-health-tracking-poll-the-publics-views-on-the-aca/#?response=Favorable--Unfavorable&aRange=all">extensive period of sustained public support</a>, according to the Kaiser Family Foundation, a nonprofit organization focusing on national health policy issues.</p>
<p>The first challenge to the ACA to reach the Supreme Court, <a href="https://www.oyez.org/cases/2011/11-393">National Federation of Independent Businesses v. Sebelius</a>, was filed in 2010, with a decision in 2012. The complaint that would become <a href="https://www.oyez.org/cases/2014/14-114">King v. Burwell</a> was filed in 2013, with a favorable decision for the ACA in 2015. This most recent challenge was filed in the spring of 2018. </p>
<p>But the germination of these legal challenges took place during a very different political era for the ACA. Indeed, until 2017, the ACA <a href="https://www.kff.org/interactive/kff-health-tracking-poll-the-publics-views-on-the-aca/#?response=Favorable--Unfavorable&aRange=all">struggled to gain public support</a>. But since early 2017, more Americans have supported the law than have opposed it, and the trendlines are unmistakable. As of May 2021, <a href="https://www.kff.org/interactive/kff-health-tracking-poll-the-publics-views-on-the-aca/#?response=Favorable--Unfavorable&aRange=all">53% of Americans supported the ACA and 35% opposed it</a>.</p>
<p>In short, it remains an open question as to whether there is the political will to continue to seek a judicial remedy to destroy a law that seems to be increasingly popular. One would think that the law may finally be here to stay. But given the frequency with which opponents of the ACA have resorted to the courts, one can never be sure.</p>
<h2>To the states</h2>
<p>Instead, it seems like the focus of health reform over the remainder of the first half of President Joe Biden’s term will be on whether the administration can finally persuade the <a href="https://www.kff.org/medicaid/issue-brief/status-of-state-medicaid-expansion-decisions-interactive-map/">12 remaining “holdout” states</a> to expand their Medicaid programs, granting health care access to millions more Americans. Two other states — Missouri and Oklahoma — <a href="https://www.kff.org/medicaid/issue-brief/status-of-state-medicaid-expansion-decisions-interactive-map/">have voted to expand Medicaid but have not yet implemented</a> Medicaid expansion.</p>
<p>The biggest prize is Texas, which, according to a study, could cover up to <a href="https://www.commonwealthfund.org/publications/issue-briefs/2019/aug/medicaid-expansion-texas-potential-economic-employment-implications">1.2 million</a> uninsured individuals through Medicaid expansion. But the Texas House <a href="https://www.texastribune.org/2021/04/22/texas-house-medicaid-expansion-uninsured/">rejected an expansion effort</a> earlier this year. Additionally, with expansion, Florida could cover <a href="https://www.commonwealthfund.org/blog/2019/medicaid-expansion-florida-budget-buster-or-deal-century">more than 800,000 people</a>, and Georgia, <a href="https://www.augustachronicle.com/story/news/2021/05/20/study-medicaid-expansion-georgia-could-bring-thousands-jobs/5163389001/">more than 600,000</a>. </p>
<p>Through <a href="https://www.usatoday.com/story/news/politics/2021/03/02/covid-stimulus-package-includes-major-expansion-obamacare/4560965001/">the COVID-19 relief bill</a>, the Biden administration sweetened the deal for states to expand their Medicaid programs <a href="https://www.nbcnews.com/politics/politics-news/changed-hearts-minds-biden-s-funding-offer-shifts-medicaid-expansion-n1262229">by increasing federal funding</a>. While it seems that those efforts may have initially <a href="https://www.nbcnews.com/politics/politics-news/changed-hearts-minds-biden-s-funding-offer-shifts-medicaid-expansion-n1262229">resulted in some shifts</a> in these states, and in others the efforts have drawn a “<a href="https://news.yahoo.com/thanks-no-thanks-states-wary-100019175.html">mixed response</a>,” no state has yet moved to expand the program as a result.</p>
<p>[<em>Understand what’s going on in Washington.</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-most">Sign up for The Conversation’s Politics Weekly</a>.]</p>
<h2>An equipoise?</h2>
<p>At the same time, it would appear that some of the more progressive health reform goals — such as “Medicare for All,” or even a government-run public option — are <a href="https://www.nbcnews.com/politics/joe-biden/health-insurance-public-option-might-be-fizzling-left-ok-n1269571">not part of the Biden agenda</a>. According to reporting in early June 2021, the federal public option “<a href="https://www.nbcnews.com/politics/joe-biden/health-insurance-public-option-might-be-fizzling-left-ok-n1269571">has fallen off the national radar and will be difficult to revive without a major push by the White House</a>.” Nonetheless, Nevada, Colorado and Washington state have now established <a href="https://www.vox.com/policy-and-politics/22535267/public-option-health-insurance-nevada-colorado-washington">their own public options</a>.</p>
<p>Instead, the Biden administration is working to <a href="https://blog.petrieflom.law.harvard.edu/2021/05/13/biden-private-health-insurance/">bolster and broaden the ACA’s subsidies for private insurance</a>, which is having positive effects on the number of Americans <a href="https://www.modernhealthcare.com/insurance/more-half-million-americans-gain-coverage-under-biden">covered under the ACA</a>.</p>
<p>All of this seems to suggest a health reform equipoise at the moment. Perhaps the ACA’s most turbulent decade is behind us, and, instead, policymakers will be working to bolster its coverage and plug its holes. Nonetheless, if we’ve learned one thing over the last 11 years of following American health care reform efforts, it is that what happens next is often hard to predict.</p><img src="https://counter.theconversation.com/content/162982/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Zack Buck 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>Support for the Affordable Care Act is at an all-time high.Zack Buck, Associate Professor of Law, University of TennesseeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1585092021-04-13T12:38:42Z2021-04-13T12:38:42ZHow the Supreme Court found its faith and put ‘religious liberty’ on a winning streak<figure><img src="https://images.theconversation.com/files/394632/original/file-20210412-19-11bzhan.jpg?ixlib=rb-1.1.0&rect=0%2C35%2C7784%2C5158&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh have bolstered the conservative wing of the Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-justices-amy-coney-barrett-neil-gorsuch-elena-news-photo/1230704283?adppopup=true">Jonathan Ernst/Getty Images</a></span></figcaption></figure><p>The Supreme Court’s current term <a href="https://www.supremecourt.gov/oral_arguments/2021TermCourtCalendar.pdf">is winding down</a>, but there are still several cases to be decided – and, as with most terms, a controversy over church-state matters looms.</p>
<p><a href="https://www.oyez.org/cases/2020/19-123">Fulton vs. City of Philadelphia</a> is among the cases still to be decided. It centers on a requirement that private agencies that receive city funding – in this case an adoption agency – do not discriminate against any community they serve, including members of the LGBTQ community. This nondiscrimination requirement applies to both religious and nonreligious organizations. But the adoption service at the heart of the case – Catholic Social Services – <a href="https://theconversation.com/amy-coney-barrett-sizes-up-30-year-old-precedent-balancing-religious-freedom-with-rule-of-law-149600">refused to comply</a>, asserting that not being allowed to discriminate against gay couples infringed upon its religious beliefs. </p>
<p>It would appear on first glance that the city’s position is strong – after all, it provides the money and has a legitimate interest in ensuring that funding does not perpetuate discrimination based on sexual orientation. </p>
<p>Yet, Catholic Social Services and its counsel, <a href="https://lawandcrime.com/supreme-court/religious-liberty-law-firm-praises-scotus-shadow-docket-in-bid-to-take-down-californias-covid-restrictions/">Becket Fund for Religious Liberty</a>, believe that they have the wind at their back regarding their claim. From my perspective as a <a href="https://willamette.edu/law/faculty/profiles/green/index.html">professor of law who has closely monitored such religious liberty cases</a>, they could be right. Religious claimants have been on a winning streak before the Supreme Court in recent years. They notched up their latest victory on April 9 when <a href="https://www.nytimes.com/2021/04/10/us/supreme-court-coronavirus-prayer-meetings.html">justices ruled that California could not impose</a> COVID-19 restrictions on religious gatherings at private homes.</p>
<h2>A noticeable shift</h2>
<p>The Supreme Court has become increasingly conservative over the past two decades, with <a href="https://www.supremecourt.gov/about/biographies.aspx">five of the last seven justices appointed by Republicans</a>. As a result, it has become increasingly <a href="https://theconversation.com/religious-identity-and-supreme-court-justices-a-brief-history-146999">sympathetic to claims by religious conservatives</a> that mandatory nondiscrimination laws violate their ability to practice their beliefs, as protected by the Constitution and federal law.</p>
<p>Two <a href="http://epstein.wustl.edu/research/ReligionInCourt.pdf">recent studies</a> have confirmed this trend. One <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3707248">found that since</a> the George W. Bush-appointed John Roberts assumed the role of chief justice in 2005, the Supreme Court has ruled in favor of religious claimants 81% of the time. This compares with a rate of about 50% for the 20th century.</p>
<p>Some of the recent cases are familiar; others, less so. In 2014, the justices <a href="https://www.oyez.org/cases/2013/13-354">relieved the craft store chain Hobby Lobby</a> from having to provide employees with health insurance that covers contraception, as mandated by the <a href="https://www.healthcare.gov/glossary/affordable-care-act/">Affordable Care Act</a>. Hobby Lobby had objected to the requirement on religious grounds. </p>
<p>And in 2020, the Supreme Court ruled that <a href="https://theconversation.com/the-supreme-court-just-expanded-the-ministerial-exception-shielding-religious-employers-from-anti-bias-laws-142248">teachers employed by religious schools were not entitled to protection against age and disability discrimination</a> as a result of the “ministerial exception” – which allows religious entities to ignore anti-bias legislation if they can assert that staff perform even minimal religious duties. </p>
<p>Meanwhile, in 2018, a majority of justices suggested that a small business – here, a baker – could <a href="https://www.nytimes.com/2018/06/04/us/politics/supreme-court-sides-with-baker-who-turned-away-gay-couple.html">refuse to serve gay customers</a> because of the owner’s religious objections to same-sex marriage. The court has also held that <a href="https://www.reuters.com/article/us-usa-court-religion/u-s-supreme-court-endorses-taxpayer-funds-for-religious-schools-idUSKBN2412FX">states have to give the same grants and tax breaks</a> to churches and religious schools that they do to nonreligious entities.</p>
<p>This trend has extended into the COVID-19 pandemic. Initially, a sharply divided court <a href="https://theconversation.com/when-it-comes-to-reopening-churches-in-the-pandemic-supreme-court-says-grace-aint-groceries-135287">refused to overturn state restrictions</a> – which for the most part classified houses of worship alongside restaurants and movie theaters as “nonessential,” distinguishing them from “essential” services such as medical offices, pharmacies and grocery stores. But in <a href="https://www.wsj.com/articles/supreme-courts-ruling-blocking-cuomos-covid-19-order-could-influence-other-cases-11606428800">late fall</a> and <a href="https://www.scotusblog.com/2021/02/divided-court-allows-indoor-worship-services-to-resume-in-california/">again in February</a>, a majority including the newly appointed religiously conservative Justice Amy Barrett struck down such orders. In so doing, they ruled that states must treat houses of worship no worse than the most favored category of essential services.</p>
<h2>Redefining religious freedom</h2>
<p>In prioritizing religious liberty claims over health and anti-bias concerns, the Supreme Court’s conservative majority has, to my mind, promoted a skewed conception of what religious freedom is. </p>
<p>Religious freedom has traditionally meant more than simply the ability to practice one’s beliefs unencumbered, free from state interference. It is a condition that lives alongside other important democratic values – such as equal rights and a separation of church and state.</p>
<p>But the Supreme Court’s conservative majority has come down on the side of a narrower interpretation of religious liberty to mean the right of individuals or groups to practice their faith as they see fit.</p>
<p>The court’s new emphasis on protecting religious liberty has redefined the conventional understanding of the <a href="https://constitution.congress.gov/browse/essay/amdt1_1_4_1/">free exercise clause</a>. Traditionally, that has meant the government could not impose a substantial burden on one’s ability to practice religion, but that lesser restrictions on that practice – such as adhering to health or safety regulations – were not unconstitutional.</p>
<p>But under the current Supreme Court, the degree of burden is less important than whether the state is treating religion differently from secular counterparts. Furthermore, in the <a href="https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf">view of another Trump appointee, Justice Brett Kavanaugh</a>, religion deserves most-favored-nation status.</p>
<p>In this way, religious entities cannot be treated any differently in the pandemic from the most essential service – but they would be able to discriminate against customers or employees in a way the essential services cannot. It is, I believe the legal equivalent of having your cake and eating it, too.</p>
<p>[<em>Explore the intersection of faith, politics, arts and culture.</em> <a href="https://theconversation.com/us/newsletters/this-week-in-religion-76/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=religion-explore">Sign up for This Week in Religion.</a>]</p><img src="https://counter.theconversation.com/content/158509/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>Conservative justices are redefining religious freedom to mean the protection of individuals or groups to practice their faith as they see fit, argues a constitutional law expert.Steven K. Green, Professor of Law, Director of the Center for Religion, Law & Democracy, Willamette UniversityLicensed 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/1484882020-10-24T16:03:29Z2020-10-24T16:03:29ZWhat is originalism? Debunking the myths<figure><img src="https://images.theconversation.com/files/364570/original/file-20201020-15-9snnyt.jpg?ixlib=rb-1.1.0&rect=53%2C275%2C3149%2C2347&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court will soon add another originalist to its ranks if Judge Amy Coney Barrett is confirmed.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-nominee-amy-coney-barrett-testifies-in-front-news-photo/1229076242?adppopup=true">Stefani Reynolds/Getty Images</a></span></figcaption></figure><p>Originalism has featured prominently in each of the last three Supreme Court confirmation battles – those of <a href="https://www.theguardian.com/law/2017/feb/02/originalism-constitution-supreme-court-neil-gorsuch">Neil Gorsuch in 2017</a>, <a href="https://www.c-span.org/video/?c4747420/user-clip-kavanaugh-originalism">Brett Kavanaugh in 2018</a> and now <a href="https://www.npr.org/sections/live-amy-coney-barrett-supreme-court-confirmation/2020/10/13/923215778/barrett-an-originalist-says-meaning-of-constitution-doesn-t-change-over-time">Amy Coney Barrett</a>. Each time, misconceptions about this theory of constitutional interpretation have swirled: Isn’t originalism self-defeating because the Founders weren’t originalist? Don’t originalists ignore the amendments written after 1789? Do originalists think the Constitution applies only to horse-drawn carriages and muskets? </p>
<p>As a <a href="https://isearch.asu.edu/profile/3325418">constitutional law professor</a>, the author of “<a href="https://www.cambridge.org/core/books/debt-against-the-living/3215F3B66E114B4102E057F97E548864">A Debt Against the Living: An Introduction to Originalism</a>,” and an originalist, I’d like to answer some frequently asked questions about originalism – and to debunk some of the myths.</p>
<h2>What is originalism?</h2>
<p>Originalism is the idea that we should interpret the Constitution with its original meaning. But what, exactly, is the Constitution’s “original meaning”? </p>
<p>Some originalists argue it’s the meaning as understood by those who <a href="http://www.law.nyu.edu/sites/default/files/ECM_PRO_064795.pdf">ratified the Constitution</a> in the various state conventions, or the public that elected those ratifiers. Others say it’s the understanding of a <a href="https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1375&context=concomm">reasonable, well-educated reader</a>. Still other scholars claim the Constitution is written in legal language and should be interpreted <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3201200">with its original “legal” meaning</a>. With this approach, for example, the term “ex post facto laws” likely refers <a href="https://supreme.justia.com/cases/federal/us/3/386/">only to retroactive criminal laws</a>, and not to all retroactive laws.</p>
<p>Although critics of originalism <a href="https://scholarship.law.gwu.edu/faculty_publications/153/">make much of these intraoriginalist squabbles</a>, the reality is all of the above approaches usually lead to the same answer. </p>
<h2>Why originalism?</h2>
<p>Originalists believe the Constitution is a public instruction to legal officials, much as statutes are public instructions to citizens and to officials. As such, the Constitution should be interpreted the same way you would interpret any communication intended as a public instruction. </p>
<p>For example, if you found a recipe for apple pie from 1789, you’d interpret it with a public meaning and not with a secret or esoteric meaning that you might use to interpret, say, a Socratic dialogue. Otherwise, the recipe would be an ineffective instruction. And you’d also interpret the recipe with its original meaning, that is, the meaning its creator intended to convey. </p>
<p>That does not, however, mean we should follow the apple pie recipe. Maybe the recipe has some fatal defect or just doesn’t meet modern tastes. In that case we can amend the recipe or perhaps abandon it. But doing so doesn’t change what the recipe actually means.</p>
<p>The Constitution works the same way: As a public instruction, its meaning is its original public meaning. Whether and why the Constitution is legitimate and binding such that we should follow it are separate questions – questions that are <a href="https://www.cambridge.org/core/books/debt-against-the-living/3215F3B66E114B4102E057F97E548864">deeply contested</a> even among originalists.</p>
<h2>Were the Founders originalists?</h2>
<p>Some critics <a href="https://www.newyorker.com/magazine/2017/03/27/weaponizing-the-past">claim that originalism is self-defeating</a> because the Founders themselves were not originalists. They say originalism is just an <a href="https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1641&context=faculty_scholarship">invention of the 1970s and 1980s</a>, a reaction to judicial activism of the Warren Court (1953-1969). That is false. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/365211/original/file-20201023-13-1gsv1d9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Members of the Supreme Court in 1967" src="https://images.theconversation.com/files/365211/original/file-20201023-13-1gsv1d9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/365211/original/file-20201023-13-1gsv1d9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/365211/original/file-20201023-13-1gsv1d9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/365211/original/file-20201023-13-1gsv1d9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/365211/original/file-20201023-13-1gsv1d9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/365211/original/file-20201023-13-1gsv1d9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/365211/original/file-20201023-13-1gsv1d9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Members of the Supreme Court in 1967 when it was led by Chief Justice Earl Warren (bottom row, center). The Warren Court (1953-1969) had a liberal majority and ruled on monumental U.S. cases including school segregation.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-the-united-states-supreme-court-the-courts-news-photo/515099756?adppopup=true">Bettman/GettyImages</a></span>
</figcaption>
</figure>
<p>All of the Founders were originalists. In 1826, <a href="https://founders.archives.gov/documents/Madison/99-02-02-0630">James Madison wrote</a>, “In the exposition of laws, and even of Constitutions, how many important errors may be produced by mere innovations in the use of words and phrases, if not controlled by a recurrence to the original and authentic meaning attached to them!” Chief Justice John Marshall <a href="https://supreme.justia.com/cases/federal/us/25/213/">wrote in 1827</a> “that the intention of the [Constitution] must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended.” Daniel Webster <a href="https://books.google.com/books?id=71g8AAAAIAAJ&pg=PA5&lpg=PA5&dq=%22common+and+popular+sense%E2%80%94in+that+sense+in+which+the+people+may+be+supposed+to+have+understood+it+when+they+ratified+the+Constitution.%E2%80%9D&source=bl&ots=EybELHt01W&hl=en&sa=X&ved=2ahUKEwj8wPy1mcnsAhWToFsKHW04AK4Q6AEwAXoECAUQAg#v=onepage&q=%22common%20and%20popular%20sense%E2%80%94in%20that%20sense%20in%20which%20the%20people%20may%20be%20supposed%20to%20have%20understood%20it%20when%20they%20ratified%20the%20Constitution.%E2%80%9D&f=false">argued in 1840</a> that the Constitution must be interpreted in its “common and popular sense – in that sense in which the people may be supposed to have understood it when they ratified the Constitution.” And as David P. Currie explained in his monumental study “<a href="https://dx.doi.org/10.7208/chicago/9780226131160.001.0001">The Constitution in Congress</a>,” between 1789 and 1861 “just about everybody” in Congress “was an originalist.”</p>
<h2>What’s the difference between originalism and textualism?</h2>
<p>Despite popular belief, there is no difference between the two. Originalists interpret the Constitution with its original meaning; textualists interpret statutes with their original meanings. Same method, different texts. </p>
<p>Both originalists and textualists argue that the secret intent of the Founding Fathers, or the legislative intent of statutory drafters, cannot override the text’s clear meaning. The Founders’ and drafters’ intent, however, is evidence of what they likely meant by what they wrote.</p>
<p>For that reason, originalists like to look to James Madison’s notes from the Constitutional Convention. In principle, textualists can look to “legislative history” like committee reports for the same reason. But <a href="https://digitalcommons.unl.edu/nlr/vol72/iss2/5/">textualists are wary</a> of relying on legislative history because doing so is unreliable. There can be so many varying and competing statements in a statute’s legislative history that relying on legislative history is, in the <a href="https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1144&context=schmooze_papers">words of Judge Harold Levanthal</a>, kind of like going to a cocktail party, looking over the crowd, and picking out just your friends.</p>
<h2>Does the originalist Constitution apply to modern circumstances?</h2>
<p>Of course. That’s why the First Amendment’s protection for freedom of speech applies to the internet. It’s why the Fourth Amendment’s prohibition on unreasonable searches and seizures applies to GPS devices that police officers put on cars. And, yes, it’s why the Second Amendment applies to more than just muskets. In other words, originalists are not bound by the original expected applications of the Constitution’s text. They’re bound by the original meaning of the text, and that meaning can and does apply to new and changing factual circumstances.</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>
<h2>Are all Supreme Court justices originalists?</h2>
<p>Justice Elena Kagan, appointed by President Obama in 2010, famously announced at her confirmation hearing that “<a href="https://www.npr.org/templates/story/story.php?storyId=128218102">we’re all originalists now</a>.” She meant that all justices take the text of the Constitution <a href="https://www.realclearpolitics.com/articles/2019/08/07/we_are_all_originalists_now_sort_of_140957.html">more seriously than they used to</a>. Only three justices, however – <a href="https://law.yale.edu/yls-today/news/rosenkranz-originalism-conference-features-justice-thomas-74">Clarence Thomas</a>, <a href="https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/">Neil Gorsuch</a> and <a href="https://www.c-span.org/video/?449705-10/supreme-court-nominee-brett-kavanaugh-confirmation-hearing-day-2-part-2">Brett Kavanaugh</a> – are self-avowed originalists. Justice <a href="https://www.yalelawjournal.org/forum/the-distinctive-role-of-justice-samuel-alito">Samuel Alito</a> and Chief Justice <a href="https://www.nytimes.com/2015/06/28/opinion/john-roberts-the-umpire-in-chief.html">John Roberts</a> both take a more pragmatic approach, giving more weight to precedents and consequences. Justices <a href="https://www.amazon.com/Active-Liberty-Interpreting-Democratic-Constitution/dp/0307274942">Stephen Breyer</a>, <a href="https://www.princeton.edu/news/2014/11/21/kagan-discusses-constitution-supreme-court-and-her-time-princeton">Elena Kagan</a> and <a href="https://supreme.findlaw.com/legal-commentary/what-is-sonia-sotomayors-judicial-philosophy.html">Sonia Sotomayor</a> believe the Constitution can and should evolve over time. </p>
<h2>Do originalists ignore Reconstruction? Do they reject Brown v. Board?</h2>
<p>A more recent misconception is that originalists ignore all the amendments written after 1789, the year the Constitution went into effect. This is an odd criticism because that would include the Bill of Rights, which wasn’t added until 1791. Originalists are bound by changes to the Constitution that have been properly made through the amendment process.</p>
<p>This is also why originalism can and does justify <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown v. Board of Education</a>, the landmark school desegregation decision. The <a href="https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/704#:%7E:text=As%20written%20by%20Ohio%20Congressman,immunities%E2%80%9D%20included%20key%20Bill%20of">14th Amendment’s privileges or immunities clause</a> – which provides that no state shall make or enforce any law that abridges the privileges or immunities of U.S. citizens – was an anti-discrimination provision with respect to civil rights under state law. If education is a civil right – and it is – then once it is acknowledged that segregation was never about equality but rather about keeping one race of Americans subordinated to another, segregated public schools obviously violate the Constitution.</p>
<h2>Is originalism just a conservative ploy?</h2>
<p>That brings us to the final misconception: Isn’t originalism just a rationalization for conservative results? The short answer is “no.” Originalists take the bitter with the sweet. They may not like federal income taxes or the direct election of senators, but they accept the original meaning of the <a href="https://constitutioncenter.org/interactive-constitution/amendment/amendment-xvi">16th</a> and <a href="https://constitutioncenter.org/interactive-constitution/amendment/amendment-xvii">17th</a> amendments on those points. Moreover, originalists often believe – whether on abortion or same-sex marriage, for example – that controversial political and moral questions should be decided by the democratic, legislative process, a process that can lead to progressive, libertarian or conservative outcomes.</p><img src="https://counter.theconversation.com/content/148488/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ilan Wurman 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 judicial theory has been a major talking point during the past three Supreme Court nominations. But what does it actually mean?Ilan Wurman, Associate Professor of Law, Arizona State UniversityLicensed 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>
<p><iframe id="QMHR8" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/QMHR8/4/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<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>
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<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>
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<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>
<figure class="align-center zoomable">
<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>
<figcaption>
<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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</figure>
<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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Read more:
<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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<strong>
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>
<figure class="align-center ">
<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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<em>
<strong>
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>
</strong>
</em>
</p>
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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/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/1195132019-08-14T21:34:27Z2019-08-14T21:34:27ZGood character testimonies aren’t a defence for sexual harassment<figure><img src="https://images.theconversation.com/files/287556/original/file-20190809-144847-spgpgn.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C4416%2C2055&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Al Franken, second from right, resigned from the U.S. Senate last year after accusations of sexual impropriety.</span> <span class="attribution"><span class="source">(AP Photo/Andrew Harnik, File)</span></span></figcaption></figure><p>Suppose you’re watching the news, and you learn that someone, let’s call her Mary, has been accused of murdering her colleague Sally. There is compelling evidence that Mary is guilty. Several of Mary’s colleagues come forward to defend her innocence. They insist Mary is a truly kind person. As a proof, they say Mary has never attempted to murder any of them. </p>
<p>Does the fact that Mary has not murdered her colleagues increase or decrease your confidence that Mary has murdered Sally? Probably neither. The fact that Mary has never attempted to murder her colleagues says nothing about whether she murdered Sally. It’s irrelevant. </p>
<p>Similarly, if someone is accused of stealing your watch, the fact that they did not steal the watch of your friend sitting right next to you says nothing relevant about whether they stole yours. </p>
<p>As reasonable as these arguments may sound, their logic is often ignored when it comes to sexual allegations.</p>
<p>The issue of what people take to be good evidence is one <a href="https://doi.org/10.1111/j.1747-9991.2008.00160.x">that philosophers have debated for centuries</a>. Philosopher <a href="https://ebooks.adelaide.edu.au/h/hume/david/h92e/chapter10.html">David Hume</a> famously said a “wise man … proportions his belief to the evidence.” My research <a href="https://www.martina-orlandi.com/research">on irrational phenomena</a> has led me to confront the relationship between evidence and biases of all kinds.</p>
<p>Philosopher Gilbert Harman argues in his book <em><a href="https://mitpress.mit.edu/books/change-view">Change In View</a></em> that people often refuse to revise our beliefs even in the face of strong counter-evidence. People rationalize to maintain their false but dear beliefs. Even when they don’t, <a href="https://psycnet.apa.org/record/1996-98402-009">research has shown</a> that people’s threshold for accepting a belief increases when it comes to dealing with one that’s particularly uncomfortable. Worse, irrational behaviour is not exclusively a prerogative of the uninformed.</p>
<p>Educated people are just as guilty of it, as recent <a href="https://www.ncbi.nlm.nih.gov/pubmed/29389158">research on anti-vaccination</a> views show: researchers who interviewed more than 5,000 people in 24 countries found that people’s <a href="https://www.ncbi.nlm.nih.gov/pubmed/29389158">education has no significant relationship with anti-vaccination attitudes</a>. The study also reports that attempts to debunk vaccine-related myths through evidence are ineffective or counterproductive. </p>
<p>The case of sexual allegations is another example of how often debates go off-track and become irrational.</p>
<h2>A decent man?</h2>
<p>In the wake of Christine Blasey Ford’s accusation of sexual assault towards Brett Kavanaugh, <a href="http://eppc.org/wp-content/uploads/2018/09/2018-09-14-Kavanaugh-HS-Women-Letter.pdf">a letter signed</a> by 65 women <a href="https://www.thecut.com/2018/09/kavanaugh-sexual-misconduct-christine-ford-palo-alto-university.html">testified to his moral character and his good behaviour towards them</a>. </p>
<p>More recently, after Lucy Flores and Amy Lappos brought Joe Biden’s inappropriate behaviour into the spotlight, <a href="https://thehill.com/blogs/in-the-know/in-the-know/436913-meghan-mccain-shows-support-for-biden-in-wake-of-second">Meghan McCain</a> called Biden “one of the truly decent and compassionate men in all of American politics,” recalling the support she received from him after her father’s diagnosis of brain cancer. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1112903229560508416"}"></div></p>
<p>After <a href="http://www.kabc.com/2017/11/16/leeann-tweeden-on-senator-al-franken/">Leeann Tweeden</a> accused senator Al Franken of sexual misconduct, <a href="https://www.newyorker.com/magazine/2019/07/29/the-case-of-al-franken">Jess McIntosh</a>, Franken’s spokesperson, said: “I’ve taken thousands of those photos with him and I’ve never seen any behaviour that was questionable. We were together non-stop — like, the only two people staying in a hotel — and nothing happened. I felt completely comfortable.” Similarly, Karri Turner said “<a href="https://www.newyorker.com/magazine/2019/07/29/the-case-of-al-franken">there was nothing inappropriate toward me</a>.”</p>
<p>The implication is that because Kavanaugh, Biden and Franken behaved appropriately with some women, then this tells us something informative about whether the allegations from other women are true. </p>
<p>For their defenders, the implication is that Kavanaugh, Biden and Franken are good guys, and they are good guys precisely because they behaved properly with some women. Because they’re good guys and presumably only non-good guys sexually offend, this should decrease our confidence that they didn’t offend Ford, Flores, Lappos and Tweeden specifically. </p>
<h2>A question of character?</h2>
<p>Perhaps the reason why people think that these positive testimonies are relevant is that the action of sexual misconduct is linked to the perpetrator’s character. This idea connects with Aristotle’s famous claim <a href="https://plato.stanford.edu/entries/moral-character/#Ari384BCE">that character traits tends to manifest repeatedly</a>.</p>
<p>If we follow this idea, it suggests that sexually harassing someone conveys the message that they are the kind of person who is a sexual harasser. </p>
<p>Because character traits tend to manifest repeatedly, we implicitly think that if someone harassed one person, they are likely to have also harassed others. So if it can be shown that not everyone they interacted with has been sexually harassed by them, then this may decrease confidence in the belief that they have harassed those women at that specific time.</p>
<p>But while it may be true that character traits tend to manifest repeatedly, repeatedly doesn’t mean always. </p>
<p>American journalist Megan Garber has called this situation “<a href="https://www.theatlantic.com/entertainment/archive/2018/07/les-moonves-and-the-familiarity-fallacy/566315/">the familiarity fallacy</a>.” She explains how easy it is to rationalize abuse when committed by those we know personally. Garber says knowing someone doesn’t constitute a legitimate defense from accusations: “an abuser will not abuse everybody.” </p>
<p>A person may respect one person’s personal boundaries, yet disregard another’s. This may be due to perceived power over the second person due to their personal vulnerability, or their social identity. Sexual <a href="https://hbr.org/2019/04/ending-harassment-at-work-requires-an-intersectional-approach">harassment is not about sex, but is about asserting dominance</a>. Factors such as a person’s racialized identity, their class, their ability, their age, the amount of power they are perceived to hold in a particular situation may all also render people more vulnerable to being sexually harassed or otherwise having their personal boundaries disrespected. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/i-am-not-your-nice-mammy-how-racist-stereotypes-still-impact-women-111028">I am not your nice 'Mammy': How racist stereotypes still impact women</a>
</strong>
</em>
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<p>Predators may take advantage of situations where they <a href="https://www.cbc.ca/news/canada/british-columbia/vancouver-sexual-predators-sting-1.4989444">think no witnesses, other than the victim, are present</a>.</p>
<p>Good-character testimonies don’t shield someone from the possibility that they have sexually harassed someone else.</p>
<p>[ <em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/ca/newsletters?utm_source=TCCA&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/119513/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Martina Orlandi 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>Good-character testimonies from some people don’t shield a person from being questioned about whether they have sexually harassed others.Martina Orlandi, PhD Candidate in Philosophy, McGill UniversityLicensed 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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<img alt="" src="https://images.theconversation.com/files/274945/original/file-20190516-69169-wm4kk1.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/274945/original/file-20190516-69169-wm4kk1.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=502&fit=crop&dpr=1 600w, https://images.theconversation.com/files/274945/original/file-20190516-69169-wm4kk1.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=502&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/274945/original/file-20190516-69169-wm4kk1.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=502&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/274945/original/file-20190516-69169-wm4kk1.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=631&fit=crop&dpr=1 754w, https://images.theconversation.com/files/274945/original/file-20190516-69169-wm4kk1.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=631&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/274945/original/file-20190516-69169-wm4kk1.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=631&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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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/1149482019-05-13T10:38:42Z2019-05-13T10:38:42ZThe unique harm of sexual abuse in the black community<figure><img src="https://images.theconversation.com/files/273837/original/file-20190510-183089-1rvbvyn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Anita Hill in Beverly Hills, California, Dec. 8, 2017.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Anita-Hill-and-Fatima-Goss-Graves-Discussion-on-/2f9783ae9dd0407ea17a01d520b30626/71/0">Willy Sanjuna/Invision/AP</a></span></figcaption></figure><p>What makes <a href="https://www.nytimes.com/2019/02/22/arts/music/r-kelly-charged-indicted.html?module=inline">R. Kelly’s alleged sexual abuse</a> of black girls <a href="https://culturalbetrayalrkellyblackfemales.blogspot.com">different</a> than that of other big-name alleged perpetrators, like Woody Allen?</p>
<p>What are the <a href="http://www.blackcommentator.com/767/767_guest_gomez_black_women_and_metoo.html">different pressures</a> faced by Anita Hill and Christine Blasey Ford regarding their testimonies of alleged sexual and gender mistreatment by Supreme Court Justices Clarence Thomas and Brett Kavanaugh?</p>
<p>As the founder of the #MeToo movement, why is Tarana Burke, a black woman, getting death threats from <a href="https://culturalbetrayalrkellyblackfemales.blogspot.com">black men</a>? </p>
<p>The underlying core of these questions is: What really makes trauma traumatic? </p>
<p>Decades of research on trauma, or physical, sexual or psychological violence, have shown the same thing: Victimization hurts people. Sexual assault in particular can be painful to all who experience it. </p>
<p>However, as a trauma expert who has studied the effect of violence for over a decade, I have found that there is a unique harm for black people and other minorities whose perpetrators are of the same minority group. </p>
<p>To understand this harm, I created <a href="https://sites.google.com/site/betrayalbook/betrayal-research-news/cultural-betrayal">cultural betrayal trauma theory</a>. The <a href="https://www.youtube.com/watch?v=UZ9G0AjSJeU">general idea</a> of cultural betrayal trauma theory is that some minorities develop what I call “(intra)cultural trust” – love, loyalty, attachment, connection, responsibility and solidarity with each other to protect themselves from a hostile society. Within-group violence, such as a black perpetrator harming a black victim, is a violation of this (intra)cultural trust. This violation is called a cultural betrayal. </p>
<h2>The harms of cultural betrayal</h2>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/273658/original/file-20190509-183086-nt872d.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/273658/original/file-20190509-183086-nt872d.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=739&fit=crop&dpr=1 600w, https://images.theconversation.com/files/273658/original/file-20190509-183086-nt872d.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=739&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/273658/original/file-20190509-183086-nt872d.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=739&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/273658/original/file-20190509-183086-nt872d.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=929&fit=crop&dpr=1 754w, https://images.theconversation.com/files/273658/original/file-20190509-183086-nt872d.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=929&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/273658/original/file-20190509-183086-nt872d.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=929&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Cultural betrayal leads to many different outcomes.</span>
<span class="attribution"><a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>Cultural betrayal trauma, which is simply within-group violence in minority populations, is associated with many outcomes that go beyond things that are typically studied with trauma, such as post-traumatic stress disorder. It includes some things not often thought about with trauma, such as internalized prejudice – like a black person believing the stereotype that all black people are violent. </p>
<p>(Intra)cultural pressure is another outcome of cultural betrayal trauma. With (intra)cultural pressure, people who experience cultural betrayal trauma are often demanded to protect the perpetrators and the minority group as a whole at all costs, even above their own well-being. With the mandate of “<a href="https://www.nytimes.com/2019/03/22/us/meredith-watson-duke-justin-fairfax.html?smid=fb-nytimes&smtyp=cur&fbclid=IwAR3IdqIUy1JyQQuaQdOxevxibsTq0YEQx5_wLoX1I7JovuK8tCjVr_HDIC4">don’t betray your race</a>,” (intra)cultural pressure punishes people who speak out about the cultural betrayal trauma they have endured. </p>
<p>In a <a href="https://journals.sagepub.com/home/vaw">recent study</a>, I tested cultural betrayal trauma theory in youth due to the increased risk for <a href="https://journals.sagepub.com/doi/pdf/10.1177/0886260510393011">trauma</a> and <a href="https://www.sciencedirect.com/science/article/pii/S1054139X09003401">mental health problems</a> in the transition into adulthood.</p>
<p>I surveyed 179 college women online in 2015. Over 50% of these young women were victims of trauma. Just under half experienced psychological violence, 14% endured physical violence, and almost one in three women were victims of sexual violence. </p>
<p>Of the young women who were victimized, over 80% reported at least one form of (intra)cultural pressure. This included their ethnic group suggesting that what happened to them may affect their minority group’s reputation. An example of this could be a black woman who has been raped by a black man being told that she should not go to the police because it will make all black people look bad. </p>
<p>Additionally, I found that controlling for age, ethnicity and interracial trauma, cultural betrayal trauma and (intra)cultural pressure were associated with symptoms of PTSD. Meaning, cultural betrayal in trauma and (intra)cultural pressure were unique contributing factors of mental health problems in ethnic minority college women. </p>
<h2>What does this all mean?</h2>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/273839/original/file-20190510-183077-1xygjuo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/273839/original/file-20190510-183077-1xygjuo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=420&fit=crop&dpr=1 600w, https://images.theconversation.com/files/273839/original/file-20190510-183077-1xygjuo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=420&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/273839/original/file-20190510-183077-1xygjuo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=420&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/273839/original/file-20190510-183077-1xygjuo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=527&fit=crop&dpr=1 754w, https://images.theconversation.com/files/273839/original/file-20190510-183077-1xygjuo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=527&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/273839/original/file-20190510-183077-1xygjuo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=527&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">Tarana Burke, founder of #MeToo, in New York City on Oct. 7, 2018.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/Search?query=tarana+burke&ss=10&st=kw&entitysearch=&toItem=15&orderBy=Newest&searchMediaType=allmedia">Evan Agostin/Invision/AP</a></span>
</figcaption>
</figure>
<p>As I analyzed the findings, I was struck by several things: </p>
<ul>
<li><p>The within-group nature of trauma includes a cultural betrayal in minorities that affects mental health.</p></li>
<li><p>Trauma gives us only part of the picture.</p></li>
<li><p>Group-level responses and cultural norms via intra-cultural pressure impact mental health.</p></li>
<li><p>Policy change that combats inequality, such as changes in education, health care, law enforcement and the judicial system, can benefit minorities who experience trauma. </p></li>
</ul>
<p>These findings have implications for interventions. Such therapy can address the very real threats of discrimination and the necessity for (intra)cultural pressure. At the same time, these interventions can use (intra)cultural trust to promote positive mental health. Additionally, evidence-informed feminist approaches, such as <a href="http://www.beacon.org/The-Healing-Connection-P270.aspx">relational cultural therapy</a>, may benefit people who are exposed to <a href="https://www.researchgate.net/profile/Laura_Noll/publication/283241568_Shifting_the_Focus_Non-Pathologizing_Approaches_to_Healing_from_Betrayal_Trauma_through_an_Emphasis_on_Relational_Care/links/5649f74c08ae295f644f99a9.pdf">both trauma and societal inequality.</a></p>
<p>The <a href="http://jmgomez.org">body of research</a> to date suggests that cultural betrayal may be a unique harm within violence in minority populations, including the black community. As such, the alleged sexual traumas perpetrated by R. Kelly and Clarence Thomas have a cultural betrayal that isn’t found in Woody Allen’s alleged abuse. Moreover, black men’s death threats against Tarana Burke are (intra)cultural pressure that is laced with <a href="https://catalystjournal.org/index.php/catalyst/article/view/28800">misogynoir</a>, or sexism in the black community. </p>
<p><a href="https://dynamic.uoregon.edu/jjf/jtd/discrimination.html">Research</a> that incorporates societal inequality can help us understand what makes trauma traumatic. In doing so, our social reactions and therapeutic interventions can ultimately be effective for blacks and other minorities who are exposed to trauma.</p><img src="https://counter.theconversation.com/content/114948/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer M Gómez received funding from the Ford Foundation Fellowships Program, administered by the National Academies of Sciences, Engineering, & Medicine. </span></em></p>Sexual abuse has unique effects on people who are members of the same minority group, research suggests. An expert who has studied the issue in detail explains the added issue of cultural betrayal.Jennifer M. Gómez, Assistant Professor, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1148132019-04-03T21:46:18Z2019-04-03T21:46:18ZBiden’s status as Democratic front-runner reveals #MeToo as weak political strategy<figure><img src="https://images.theconversation.com/files/271092/original/file-20190425-121245-1ocw055.jpg?ixlib=rb-1.1.0&rect=0%2C132%2C2400%2C1462&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Joe Biden greets people at a Delaware pizza parlour shortly after announcing on April 25 he was running for president. Allegations of "inappropriate conduct" by several women have had little impact on his candidacy.</span> <span class="attribution"><span class="source">(Jessica Griffin/The Philadelphia Inquirer via AP)</span></span></figcaption></figure><p>With his official declaration that he’s running for president again, <a href="https://fivethirtyeight.com/features/how-joe-biden-could-win-the-2020-democratic-nomination/">Joe Biden is now considered the front-runner in the crowded Democratic race</a> to take on Donald Trump in 2020. Biden’s status as the early favourite is another example of the #MeToo movement showing itself to be an ineffective tool when it comes to Democratic politics in the United States.</p>
<p><a href="https://theconversation.com/why-the-kavanaugh-hearings-were-a-show-trial-gone-bad-102025">Last fall, the Democrats dramatically failed to leverage sexual assault</a> allegations against Brett Kavanaugh, then a Supreme Court nominee and now a justice on the court. Weeks before Biden declared his official candidacy, various factions of the Democratic party alleged the former U.S. vice-president engaged in “inappropriate conduct” with women at previous campaign and fundraising events.</p>
<p><a href="https://www.thecut.com/2019/03/an-awkward-kiss-changed-how-i-saw-joe-biden.html?fbclid=IwAR2Fh5U1pIoVNzAdjZMVZqrfLGq1QPl8jBNcGejR_vNE50cjz0ZdVLWgIBU">Politician Lucy Flores alleged</a> in an article for <em>The Cut</em> that during her campaign for lieutenant governor of Nevada in 2014, Biden approached her from behind, put his hands on her shoulders, smelled her hair and kissed the back of her head. Flores recounts that the incident left her feeling “uneasy, gross and confused.” She describes Biden as “America’s creepy uncle.”</p>
<p>On the heels of Flores’s allegations, <a href="https://www.courant.com/politics/hc-pol-biden-grabbed-aide-20190401-vl7chim3hrdjtcwu2tszrhozzm-story.html">Amy Lappos, a former congressional aide in Connecticut, alleged</a> Biden grabbed her head, pulled her toward him and rubbed his nose against hers at a 2009 political fundraiser. Lappos describes the interaction as having crossed “a line of decency,” noting that it was “incredibly uncomfortable.”</p>
<p>At least two other women later took to Twitter <a href="https://twitter.com/mylovelycece/status/1112703361894236165">with similar accounts</a>.</p>
<p>Strikingly, none of these stories were overtly sexual. They sit at the outer edge of the “<a href="https://www.nytimes.com/2018/02/23/us/the-metoo-moment-navigating-sex-in-the-gray-zone.html">gray zone</a>,” a category that refers to inappropriate behaviour that falls below the level of criminal sexual assault.</p>
<p>Flores appeared ambivalent about the sexual nature of Biden’s actions, noting that “even if” they were not “violent or sexual,” they were nevertheless “<a href="https://www.thecut.com/2019/03/an-awkward-kiss-changed-how-i-saw-joe-biden.html?fbclid=IwAR2Fh5U1pIoVNzAdjZMVZqrfLGq1QPl8jBNcGejR_vNE50cjz0ZdVLWgIBU">demeaning and disrespectful.</a>” Lappos said that Biden’s alleged nose-rubbing <a href="https://www.courant.com/politics/hc-pol-biden-grabbed-aide-20190401-vl7chim3hrdjtcwu2tszrhozzm-story.html">“wasn’t sexual.”</a></p>
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<img alt="" src="https://images.theconversation.com/files/267396/original/file-20190403-177190-1bsnpcq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/267396/original/file-20190403-177190-1bsnpcq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/267396/original/file-20190403-177190-1bsnpcq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/267396/original/file-20190403-177190-1bsnpcq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/267396/original/file-20190403-177190-1bsnpcq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/267396/original/file-20190403-177190-1bsnpcq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/267396/original/file-20190403-177190-1bsnpcq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&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">Lucy Flores at her North Las Vegas campaign headquarters in June 2016.</span>
<span class="attribution"><span class="source">(AP Photo/Michelle Rindels)</span></span>
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<p><a href="https://www.thecut.com/2019/03/an-awkward-kiss-changed-how-i-saw-joe-biden.html?fbclid=IwAR2Fh5U1pIoVNzAdjZMVZqrfLGq1QPl8jBNcGejR_vNE50cjz0ZdVLWgIBU">Flores asked</a>: “Is it enough of a transgression if a man touches and kisses you without consent, but doesn’t rise to the level of what most people consider sexual assault?” </p>
<p>Central to the logic of #MeToo is the weaponization of trauma in the service of power politics. That is, the movement justifies its claims on the back of individual stories about pain and suffering, and the anger that so often attends these stories. However, #MeToo has only been successful in unseating powerful men when the interests of public morality and the political ruling class converge. Neither of these conditions are met with respect to Biden.</p>
<p>Biden’s alleged creepiness presents a test for #MeToo. It presses us to consider how wide we want to cast the censorious net: should it include behaviour that is not overtly sexual? It also demonstrates that the goal of women’s empowerment is often not aligned with the de-platforming of powerful men. </p>
<p>In contrast to the Kavanaugh situation, where it was relatively straightforward that someone accused of sexual assault should not sit on the Supreme Court, it is far less clear whether “creepy uncle” status should disqualify a presidential candidate. </p>
<p>In this case, it is simply not enough to believe women, because doing so does not resolve the political question of how to evaluate Biden’s candidacy. In other words, it doesn’t tell Democrats whether they should abandon Biden or close ranks around him. If it is true that Biden would likely beat Trump in the presidential election, it <a href="https://thehill.com/homenews/media/436868-brzezinski-rips-woke-left-on-biden-youre-eating-those-who-can-beat-trump">may not be savvy to sacrifice him on the altar of #MeToo</a>. </p>
<h2>Political motives</h2>
<p>In response, Biden has said he never intended to act inappropriately toward women, nor believed that he had done so. He said that though he <a href="https://www.cnbc.com/2019/03/31/joe-biden-responds-to-lucy-flores-inappropriate-kiss-allegation.html">“may not recall these moments the same way,”</a> he “will listen respectfully” to complaints made against him. Biden has also done things early in his candidacy to appeal to female voters, including <a href="https://thehill.com/homenews/media/440652-biden-to-appear-on-the-view-for-first-interview-on-2020-bid">holding his first post-announcement interview on <em>The View</em> </a>and <a href="https://www.nytimes.com/2019/04/25/us/politics/joe-biden-anita-hill.html?action=click&module=Top%20Stories&pgtype=Homepage">making a phone call to Anita Hill to express his regrets over how she was treated during the 1991 Supreme Court confirmation hearings for Clarence Thomas.</a> </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1113515882960052224"}"></div></p>
<p>Flores and Lappos hail from different Democratic factions; both are opposed to a potential Biden candidacy.</p>
<p>Flores is firmly embedded within the progressive wing of the Democratic party and <a href="https://www.cnn.com/2019/04/01/politics/who-is-lucy-flores-biden-accuser-former-nevada-lawmaker/index.html">previously served on the board of Our Revolution</a>, a political action organization affiliated with the Bernie Sanders campaign. </p>
<p>Lappos previously served as an aide to Congressman Jim Himes, <a href="https://www.rollcall.com/news/politics/new-democrat-coalition-elects-derek-kilmer-as-new-chair">former chairman of the New Democrat Coalition</a>, the centre-left pro-corporate wing of the party. The political motives behind her allegations seem obvious. She has said that “if Biden truly supports women and gender equality, he would step aside and support one of the many talented and qualified women running.”</p>
<h2>MeToo fails to address structures of inequality</h2>
<p>Though it failed to stop Kavanaugh’s confirmation, #MeToo as a political tactic was more likely to succeed against him than it was against Biden. The allegation of sexual assault is much more severe than mere creepiness. </p>
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<figcaption><span class="caption">During an appearance on The View, Joe Biden addressed issues of inappropriate conduct with women.</span></figcaption>
</figure>
<p>Christine Blasey Ford was a less politically invested complainant than either Flores or Lappos. Kavanaugh did not have the benefit of Biden’s long history of goodwill and political support. Further, the decision on Kavanaugh had to be made quickly under quasi-judicial circumstances, whereas the Biden question was litigated in the court of public opinion, many months before the actual primary race.</p>
<p>The allegations against Biden are far from game-changers; at best, they fall into the can’t-hurt tactical category.</p>
<p>In the realm of electoral politics, #MeToo itself is a tactic, not a substantive strategy. Whether it should be leveraged depends on the strength of the political projects on whose behalf it is deployed. </p>
<p>This is especially true where that candidate has credibly committed to engaging productively with the allegations against him. Actress and #MeToo advocate Alyssa Milano has backed Biden as a champion of women’s rights, tweeting how she has <a href="https://twitter.com/Alyssa_Milano/status/1112869883069382656">“been fortunate to accompany him to events with survivors where he has listened to their stories, empathized with them, and comforted them.” </a></p>
<p>The #MeToo movement has been <a href="https://www.tandfonline.com/doi/pdf/10.1080/1554477X.2019.1563418">sharply criticized for being both enabled and propelled by neoliberalism, and for failing to question the economic structures at the root of feminine inequality</a>. Ironically, and perhaps tragically, with the Biden allegations, women on the left of the political spectrum are attempting to use the <a href="https://www.currentaffairs.org/2017/11/can-the-masters-tools-destroy-the-masters-house">master’s tools</a> to dismantle the political economy that is the source of so much harm.</p><img src="https://counter.theconversation.com/content/114813/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Heidi Matthews receives funding from the British Academy.</span></em></p>Several women recently came forward to complain about “inappropriate conduct” by Joe Biden. Even in the #MeToo age, the allegations appear to have little impact on Biden’s status as the front-runner.Heidi Matthews, Assistant Professor, Osgoode Hall Law School, York University, CanadaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1089732018-12-19T16:01:09Z2018-12-19T16:01:09ZYour deeply held beliefs may just be wrong – 5 essential reads<figure><img src="https://images.theconversation.com/files/251370/original/file-20181218-27749-1gz2sla.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Maybe it's time to reconsider those long-held ideas?</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/senior-confused-man-shrugging-his-shoulders-629472239">Shutterstock/pathdoc</a></span></figcaption></figure><p><em>Editor’s note: As we come to the end of the year, Conversation editors take a look back at the stories that - for them - exemplified 2018.</em></p>
<p>Our job at The Conversation is to work with scholars to publish analysis that helps readers make sense of the world. And if we demolish a few popularly held – but erroneous or misplaced – ideas and assumptions in the process, that makes me especially happy.</p>
<p>Hence my list, here, of stories from 2018 that use facts to interrogate popular wisdom – and the ideas they proved wrong:</p>
<h2>1. Women can’t possibly vote for Republicans</h2>
<p>In an era when leading Republican political figures – from the president to a Supreme Court nominee – are accused of sexual assault, can women “both be Republican and insist upon women’s rights,” ask Rochester Institute of Technology scholars <a href="https://www.rit.edu/cla/socanthro/christine-kray">Christine A. Kray</a>, <a href="https://www.rit.edu/cla/communication/faculty-staff/hinda-mandell">Hinda Mandell</a> and <a href="https://www.rit.edu/cla/history/faculty/tamar-w-carroll">Tamar Carroll</a>. </p>
<p>Yes, the scholars write. “<a href="https://theconversation.com/republican-women-are-just-fine-thank-you-with-being-republican-104762">Republicanism encompasses different visions of womanhood that allow women to feel that they can be Republican and also strong women</a>.”</p>
<h2>2. Kavanaugh will yank the Supreme Court far to the right</h2>
<p>Brett Kavanaugh’s appointment to the Supreme Court was widely predicted to plunge the court – and American law with it – into a new conservative era. But, writes University of Oregon law professor <a href="https://law.uoregon.edu/explore/ofer-raban">Ofer Raban</a>, “<a href="https://theconversation.com/kavanaughs-impact-on-the-supreme-court-and-the-country-may-not-be-as-profound-as-predicted-106304">these prognoses fail to heed some fundamental distinctions among the decisions of the Supreme Court</a>, and may create a mistaken impression of the court’s power and the inevitable trajectory of American law.” </p>
<p>Simply put, Raban wrote, “Supreme Court rulings are often not the last word on a matter.”</p>
<h2>3. Campaign spending is ruining democracy in the US</h2>
<p>Seventy percent of Americans believe there’s too much money in politics and that spending in elections should be limited. That includes both Democrats and Republicans, according to a recent Pew survey.</p>
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<a href="https://images.theconversation.com/files/251562/original/file-20181219-45419-1muzzry.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/251562/original/file-20181219-45419-1muzzry.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/251562/original/file-20181219-45419-1muzzry.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=329&fit=crop&dpr=1 600w, https://images.theconversation.com/files/251562/original/file-20181219-45419-1muzzry.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=329&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/251562/original/file-20181219-45419-1muzzry.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=329&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/251562/original/file-20181219-45419-1muzzry.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=414&fit=crop&dpr=1 754w, https://images.theconversation.com/files/251562/original/file-20181219-45419-1muzzry.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=414&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/251562/original/file-20181219-45419-1muzzry.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=414&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">Campaign spending isn’t the problem.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/download/confirm/717654034?src=olbTDy8fqcDJY_e_6q3V4Q-1-18&size=huge_jpg">Shutterstock</a></span>
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<p>But campaign spending plays an important role in democracy, helping get candidates’ messages out and educating the public. Columbia Law School scholar <a href="https://www.law.columbia.edu/faculty/richard-briffault">Richard Briffault</a> writes that “<a href="https://theconversation.com/campaign-spending-isnt-the-problem-where-the-money-comes-from-is-104093">the volume of campaign spending is not the main problem with our campaign finance system.</a> The real challenge for our democracy is where so much of this money comes from.” </p>
<p>“The private dollars that drive the system come from a tiny fraction of our society,” writes Briffault, from a donor class that is not “representative of the broader community whose interests are all at stake in an election.”</p>
<h2>4. Trump is another Hitler</h2>
<p>Scholar <a href="https://clasprofiles.wayne.edu/profile/at3369">Sylvia Taschka</a> of Wayne State tackled the countless references to President Donald Trump as this era’s Hitler. </p>
<p>Taschka acknowledges that some historians have made legitimate comparisons of the “few striking similarities between the rise of fascism in Germany then and the current political climate in the United States.” </p>
<p>But, such comparisons are false equivalencies that “<a href="https://theconversation.com/trump-hitler-comparisons-too-easy-and-ignore-the-murderous-history-92394">not only risk trivializing Hitler and the horrors he unleashed</a>,” she writes, but “also prevent people from engaging with the actual issues at hand.”</p>
<h2>5. Gun owners are crazy people</h2>
<p>On “an ordinary day” in 2011, writes criminal justice scholar <a href="https://theconversation.com/profiles/connie-hassett-walker-447646">Connie Hassett-Walker</a>, she found her husband watching a firearms video. She sat down with him, and that moment was the beginning of five years of research into videos made by gun owners that culminated in a book. </p>
<p>“For all the noise around gun control versus gun rights, there was a story that was missed by non-gun owners like me: how much these guns mean to those who own them,” writes Hassett-Walker.</p>
<p>Americans live in a time of political polarization on a variety of social issues, she writes. “<a href="https://theconversation.com/want-to-understand-gun-owners-watch-their-videos-94694">Both gun control and gun rights supporters would benefit from understanding how those with opposing political and social views see their identity and their culture</a>.”</p><img src="https://counter.theconversation.com/content/108973/count.gif" alt="The Conversation" width="1" height="1" />
Popular wisdom may be popular, but sometimes it’s downright wrong. Five stories from The Conversation’s 2018 politics coverage interrogate popular wisdom – and find it lacking.Naomi Schalit, Senior Editor, Politics + Democracy, The Conversation USLicensed 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.