The last Supreme Court term was unprecedented. And the next term could offer more blockbuster decisions when it starts on Monday, Oct. 3.
This is a deeply conservative court, and the court is evidencing some serious “go big or go home energy.” This may make you thrilled or despondent. But the court has made, and will continue to make, decisions that are out of step with the views of the majority of the country on hot button issues like abortion, guns, and religion. This could account for the court’s historically low approval ratings. But we should be circumspect about criticizing a court just because its decisions are not in keeping with the will of the majority. A judge’s job, in part, is to protect individual rights and to uphold the Constitution; that is not always politically popular. Having said that, there is a question as to whether this particular court is actually protecting individual rights.
This is the most conservative court the nation has seen in almost a century. The 2021-2022 Supreme Court term was the first year that the court had a solid six-to-three conservative majority. When Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg, it fundamentally shifted the balance of power on the court. While the court was a five-to-four conservative majority court before, Chief Justice John Roberts’ vote was needed for the other conservative justices to accomplish their goals. But with the addition of Justice Barrett to the bench, we will now see if the chief will increasingly become an island unto himself. Simply put, we must watch to see if the chief has lost control. Thus far, it appears that he has.
The biggest ruling last term was of course the Dobbs decision, which overturned the court’s 1973 decision in Roe v. Wade. And the court’s decision to overturn half a century of precedent would not have occurred without Justice Barrett on the court. Five conservative members of the court ruled that Roe was wrong, in fact egregiously wrong, and that the Constitution does not protect a woman’s ability to obtain an abortion. Roberts advocated for a narrower ruling that would have whittled away at Roe, but still allowed it to stand as precedent.
The practical impact of the court’s decision in Dobbs is generally well-known: About half of the states have or will ban or severely restrict access to an abortion. And there could be movement on the national level to ban abortion throughout the country.
But, as I’ve written about before, this term was about more than just abortion. For the first time in a decade, the court also took on a big Second Amendment case and struck down New York’s 109-year-old gun control law. The practical effect of this decision is that far more people will be able to obtain concealed carry permits and there will be more guns on the streets. In Los Angeles alone, this ruling could have a huge impact: The Los Angeles County Sheriff estimated that as a result of the ruling, the number of concealed carry permits in Los Angeles could balloon from 155 to 50,000.
The court also tackled in two separate cases another hot-button issue: the rights of religious objectors. Again, we see the court pulling the law strongly to the right. As Justice Sonia Sotomayor noted in a dissent, “The court leads us to a place where separation of church and state becomes a constitutional violation.” In one case, the court concluded that a public high school football could not be fired for praying on the field after games. In another, the court held that a state could not bar the use of public funds for use at religious schools. In both cases, the court is prizing the free exercise clause of the First Amendment above the establishment clause, which tells the government not to establish a government religion, prefer one religion over another, or religion over nonreligion, or vice versa.
In addition, the court constrained the ability of federal agencies to make so-called “major decisions.” The case involved the Environmental Protection Agency’s ability to try to reduce power plants’ carbon dioxide emissions. Here, again, we have a case with enormous practical consequences. As Justice Elena Kagan noted in her dissent, there are “catastrophic harms” caused by climate change.
But hold on, there’s more: Next term, the court will hear a case that could fundamentally affect elections in the country. The case involves the independent state legislature theory. Those who advocate for the adoption of this theory argue that only state lawmakers, not state court justices, governors, or secretaries of state, can make decisions regarding federal elections and how to appoint electors to send to the Electoral College. If the court adopts this view, it would mean that state lawmakers’ decisions are entirely insulated from state court review, and federal judges could get involved only when a case raises a separate federal question.
The court does have a new justice; Justice Ketanji Brown Jackson replaced her former boss, Justice Stephen Breyer. There is no doubt that Justice Jackson will change the court. Imagine a dinner party of nine people. One person leaves and is replaced by a different person who generally holds similar views. The dinner party still fundamentally changes. And so will the court. But what will not change is that this is and will be a solidly conservative court with, apparently, the desire to pull the law and the country strongly to the right.
Whether or not you disagree with the court’s current majority, it is well past time to consider structural reforms to the court such as rotating terms. We could, for instance, implement two-decade term limits on the justices and could stagger those terms to ensure that each president gets at least one appointment. None of that change will come easily. The answer is often the same: Don’t just vote, but stay involved between elections. We ask too little of ourselves if being an engaged citizen only includes voting every two years.