WASHINGTON – A transformed Supreme Court returns to the bench on Monday to begin a momentous term in which it will consider eliminating the constitutional right to abortion, dramatically expanding gun rights and further undermining the wall between the church and state.
The abortion case, a challenge to a Mississippi law that bans most abortions after 15 weeks, has attracted the most attention. The court, now dominated by six Republican nominees, looks set to use it to undermine and possibly overthrow Roe v. Wade, the 1973 ruling that established a constitutional right to abortion and prohibited states from banning the procedure prior to fetal viability.
The busy case will test the leadership of Chief Justice John G. Roberts Jr., who lost his post at the ideological center of the Court with the arrival last fall of Justice Amy Coney Barrett. He is now overwhelmed by five judges to his right, which limits his ability to guide the court towards the consensus and incrementalism he said he prefers.
The chief justice, who sees himself as the guardian of the court’s institutional authority, now heads a court increasingly associated with partisanship and which recent polls show is suffering a marked decline in public support. At a time when judges became unusually defensive in public over the court record, a Gallup poll last month found that only 40% of Americans approved of the work the court did, the lowest rate since 2000, when Gallup first posed. the question.
Irv Gornstein, executive director of the Georgetown Law Supreme Court Institute, told reporters in a briefing that it has been decades since the court has faced a similar drop in public confidence.
“Not since Bush v. Gore has the public perception of the legitimacy of the court which seemed so seriously threatened, ”he said, referring to the 2000 ruling in which the judges, divided on ideological lines, handed over the presidency to George W Bush.
The recent poll follows a string of unusual summer decisions late at night in politically charged affairs. The conservative majority in court rejected the Biden administration’s asylum and deportation policies, and allowed a Texas law to go into effect banning most abortions after six weeks of pregnancy. In the Texas decision, which was both procedural and extremely consequential, Chief Justice Roberts joined the three Democratic members appointed by the dissenting court.
In a series of recent public appearances, several judges have insisted their decisions are not tainted with politics. Judge Barrett told an audience in Kentucky last month that “my goal today is to convince you that this tribunal is not made up of a bunch of partisan hacks.”
His remarks, at the McConnell Center at the University of Louisville, came after an introduction by Sen. Mitch McConnell, Republican of Kentucky and Minority Leader, who helped found the center. Mr McConnell was instrumental in securing Judge Barrett’s hasty confirmation just weeks after Judge Ruth Bader Ginsburg’s death and weeks before President Donald J. Trump lost his candidacy for re-election.
In recent weeks, Justices Stephen G. Breyer and Clarence Thomas have also defended the court against charges of partisanship, saying judicial philosophies rather than political preferences guide its work. They added, albeit somewhat obliquely, a warning that a proposal to expand the size of the court being considered by a presidential commission would undermine the authority of the court.
Judge Samuel A. Alito Jr. on Thursday defended the court more forcefully, saying critics sought to characterize it “as having been captured by a dangerous cabal that uses underhand and inappropriate methods to achieve its ends. “.
“This representation,” he said, “fuels unprecedented efforts to intimidate and undermine the tribunal as an independent institution.”
The collective impression created by the remarks was that of a defensive stance, said Mary Ziegler, a law professor at Florida State University.
“They are aware of the same poll that everyone sees that shows the court’s popularity has dropped quite dramatically in recent months,” she said. “If they do things that align with the partisan results promised by Donald Trump during the election campaign, people are going to see them as partisan.”
Mr. Trump, who appointed Justices Barrett, Neil M. Gorsuch and Brett M. Kavanaugh, pledged to choose judges determined to overthrow Roe v. Wade and protect the Second Amendment.
The court last heard arguments in person more than 18 months ago, on March 4, 2020, in a case challenging a restrictive abortion law in Louisiana. Justice Ginsburg was part of a majority of five judges that struck down the law in June. She died a few months later.
Chief Justice Roberts voted with what was then the four-member Liberal wing of the court in this case, although he did not adopt his reasoning. Over a year later, he voted with the three remaining Liberals at odds in the Texas abortion case.
The chief justice’s cautious support for abortion rights precedents could continue in the Mississippi case, said Sherry F. Colb, a law professor at Cornell, although she said she did not didn’t expect his point of view to prevail.
“I wouldn’t have said that a few years ago, but I can imagine Chief Justice Roberts will be dissenting,” she said. “Maybe he’ll even write dissent.”
“He is concerned about the reputation and image of the court,” added Professor Colb. “He really cares about the court as an institution.”
If there is a fifth vote to strike down the Mississippi law, it will likely come from Judge Kavanaugh, Professor Ziegler said. “Kavanaugh seems to have some worry about the optics and some worry about moving too fast,” she said. “Is he going to be like Roberts and concerned about institutional concerns and backlash?” “
Carrie C. Severino, president of the Judicial Crisis Network, a conservative group, said Chief Justice Roberts’ diminishing power could be liberating.
“The biggest change is that it is no longer the swing vote,” she said.
“You are one of the nine votes,” she said. “Vote as you think is legally correct. There have been concerns in the past that in some cases this was not the primary consideration. It really frees him from that temptation and that pressure.
The coronavirus pandemic has driven judges from their courtrooms for all of Judge Barrett’s first term as the court heard arguments over the phone. Monday will be his debut in person to hear arguments on the bench, seated in the seat to his far right reserved for the junior judge.
Judge Kavanaugh, who tested positive for coronavirus last week, will be missing. He will participate in at least the first three days of arguments “remotely from his home,” a court spokeswoman said on Friday.
The public remains excluded from the courtroom and the tribunal will continue to broadcast its arguments live, an innovation brought on by the pandemic that would have been difficult to imagine a few years ago.
The brand arguments will take place in the fall. On November 3, the court will consider the constitutionality of a New York law that places strict limits on carrying firearms outside the home. The court hasn’t made a major decision on the Second Amendment in over a decade, and it has said virtually nothing about the right to bear arms in public.
The central issue in the case, New York State Rifle & Pistol Association v. Bruen, No. 20-843, divided the Conservatives. Some say that the right to self-defense is more acute in public. Others point to historical evidence that states have long regulated guns where people congregate.
On December 1, the court will hear arguments in Dobbs v. Jackson Women’s Health Organization, No. 19-1392, a challenge to a Mississippi law that seeks to ban most abortions after 15 weeks of pregnancy – about two months earlier than Roe and subsequent rulings allow.
The law, enacted in 2018 by the Republican-dominated Mississippi legislature, prohibited abortions if “the probable gestational age of the unborn human” was determined to be more than 15 weeks. The law, a calculated challenge for Roe, included narrow exceptions for medical emergencies or “a serious fetal abnormality.”
Lower courts have said the law is patently unconstitutional under Roe, which prohibits states from prohibiting abortions before fetal viability – the point at which fetuses can live outside the womb, or around 23 or 24 weeks. But the case offers the newly enlarged Conservative majority in the Supreme Court an opportunity to step back or narrow the constitutional protection of abortion rights established by Roe v. Wade.
“Change is about to happen when it comes to abortion,” said Elizabeth W. Sepper, professor of law at the University of Texas at Austin. “I think they’re going to cancel Roe v. Wade.”
The guns and abortion cases make the new term stand out, Professor Ziegler said.
“They are huge,” she said. “You have two of the most explosive problems in American politics. “
But there are many other important cases on the agenda. On Wednesday, for example, judges will hear arguments in United States v. Abu Zubaydah, No. 20-827, a case over whether the government can prevent a Guantánamo Bay detainee from obtaining information from two former CIA contractors involved in his torture. on the grounds that he would expose state secrets.
A week later, in United States v. Tsarnaev, No.20-443, the court will reconsider the decision of an appeals court which overturned the death sentence of Dzhokhar A. Tsarnaev, who was found guilty of helping to carry out the Boston Marathon attacks in 2013 .
On November 1, in another death penalty case, Ramirez v. Collier, # 21-5592, the court will hear a request from a convicted Texas inmate that his pastor can touch him and pray aloud with him. in the chamber of death.
In its final argument scheduled for this year, on December 8, the court will hear Carson v. Makin, No. 20-1088, a dispute over whether Maine can exclude religious schools that offer sectarian education from a state school curriculum.
But it will be the Mississippi abortion affair that fascinates the nation. The court is unlikely to rule until June, as the midterm elections approach.
“There will be people who lose their minds because of this matter, no matter what direction you take,” Severino said.