The US Supreme Court’s new conservative supermajority—six judges appointed by Republican presidents, three by Democrats—has shown itself to be a reactionary steamroller. Most notoriously, it has overruled Roe v Wade and eradicated the constitutional right to abortion, but in the past year it has also identified a second amendment right to carry a gun outside the home, nullified federal climate change measures and expanded the role of religion in the public sphere. Many of these cases have been premised on a judicial philosophy of originalism, which attempts to interpret constitutional provisions as they would have been understood at their time of drafting and which is—for the first time in the Court’s history—embraced by a majority on the court.
The court has the ability to strike down laws it finds to be unconstitutional (including primary legislation, unlike the UK Supreme Court) and so has an immense deal of power, and often the last word on the US Constitution.
Back in 2008, the veteran New York Times journalist Linda Greenhouse considered that the US had the Supreme Court it deserved. However, she recently modified this opinion, writing that: “We are in a different place now… and the current term finds the court in a danger zone as a willing—and wilful—participant in a war for the soul of the country.” The court’s recent decisions prove her right.
But what also comes through in the court’s latest opinions is not just its highly conservative thrust, but also its unprincipled tendencies—its willingness to pick and choose doctrines that aid its preferred outcomes. The justices are deferential to states’ rights on some occasions only, and employ contentious theories in selective ways.
Abortion
Most notorious of the court’s recent decisions is Dobbs v Jackson Women’s Health Organisation, decided on 24th June 2022, in which five justices (Alito, Thomas, Gorsuch, Kavanaugh and Barrett) declared Roe v Wade “egregiously wrong” and overruled it. They did so on the basis that the right to abortion has no firm foundation in “history and tradition” and so the decision whether to ban it should rest with individual states. The court’s reasoning has been attacked by many, including historians, as inaccurate and ill informed.
The 14th Amendment, passed after the US Civil War, bans states from depriving persons of “liberty” without “due process of law,” and the court has long understood it as a protection against state measures that interfere with bodily integrity, including personal decisions about reproduction, sexual intimacy, and family. This “living Constitution” interpretation, which acknowledges that abstract, flexible terms—such as “liberty” or “equal protection”—develop over the years, was widely adopted by past Supreme Court justices. But it has been abandoned by the conservative majority of the present court. The right to abortion was not recognised in 1868, when the 14th Amendment was adopted—and so, the thinking runs, it should not be recognised by the federal courts today.
The Supreme Court overruled years-old precedent in Dobbs—not just Roe v Wade but also Planned Parenthood v Casey, both of which affirmed the fundamental right to abortion before foetal viability. There are good reasons why the Supreme Court does not readily abandon precedent—it would threaten the court’s legitimacy if it frequently changed its mind according to its judicial composition. Even Chief Justice John Roberts (himself very conservative, voting in Dobbs to find the Mississippi law under challenge, which limited abortion, constitutional—although he was not for overruling Roe) wrote in Dobbs that “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognised, but also expressly reaffirmed applying the doctrine of stare decisis” (the principle of standing by settled judicial reasoning).
Dobbs is the first case where the court has overturned a precedent in order to eradicate a constitutional right
Indeed, if anything, the central holding of Roe had the status of some sort of “super-precedent” because it had been so famously upheld in the jointly written opinion of three conservative justices in Casey (O’Connor, Souter, and Kennedy—all appointed by Republican presidents, and who had not been expected to uphold Roe). Not only is the Dobbs majority opinion offensive in declaring Roe “egregiously wrong,” but it also ignores Roe’s reaffirmation and refinement (considered by many, including philosopher and jurist Ronald Dworkin, to be a strengthening) in Casey—which elucidated why the right to abortion should be considered so fundamental. This is, according to the majority in that case, because such decisions involve “the most intimate and personal choices a person may make in a lifetime.” “At the heart of liberty,” they added, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
The Dobbs majority, no doubt in an attempt to normalise its ruling, cited many cases in which the Supreme Court had abandoned previous precedents—such as the desegregation case, Brown v Board of Education, which overruled the “separate but equal” doctrine of Plessy v Ferguson. However, Dobbs is unprecedented in being the first case where the Supreme Court has overturned a precedent in order to eradicate a constitutional right.
The logic of the Dobbs ruling could threaten other constitutional rights to personal autonomy. If the “liberty” of the 14th Amendment is to be interpreted only in light of rights recognised at its adoption in 1868, then many other protections are at risk too. Alito—the author of the Dobbs judgment—sought to distinguish abortion on the basis that, in his words, it destroys “potential life,” but this provides no compelling reason to distinguish it from other rights. Many actions protected by the Constitution might be construed as capable of destroying “potential life.” Indeed, Justice Clarence Thomas, concurring, showed a willingness to limit the right to obtain contraceptives, and to same-sex intimacy and marriage, on the basis of the same reasoning that overturned Roe. Previous cases upholding such rights were “demonstrably erroneous,” he wrote, and the court had “a duty to ‘correct the error’ established in those precedents.” Surely if Roe is “egregiously wrong,” then so too must be most Supreme Court caselaw over the last century, as no previous justice (with the exception of staunch conservative Antonin Scalia) supported the originalist theory of interpretation on which Alito’s judgment relies.
The three dissenting justices in Dobbs wrote that “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.” The dissent also observed that “The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.” Immediately after the Dobbs judgment, many states passed legislation implementing abortion restrictions.
Gun control
But Dobbs is not the only recent decision to have produced shock waves. In New York State Rifle & Pistol Association, Inc v Bruen, the court (6:3) annulled a 1908 New York law which required “proper cause” in order to obtain a licence to carry a gun in public. The Bruen decision came shortly after the atrocities in Buffalo and Uvalde—among the worst periods in recent US history for mass shootings, and a time of public demand for more gun regulation—but this did not seem to affect the Supreme Court. In a decision authored by Justice Thomas, it declared that the only permissible gun regulations under the Constitution are those corresponding to laws that existed in the 18th century, when the Second Amendment (the right to bear arms) was adopted—or possibly the 19th century, when Congress adopted the 14th Amendment. Of course, conditions in the US have changed dramatically since then, as has gun manufacture—and one would think that the evolution of semi-automatic weapons might require some consideration. Applying only understandings that are centuries old is clearly otiose.
Yet the Bruen decision antagonises in further ways—which also seem to undermine its originalist interpretation. The Second Amendment was not recognised as protecting an individual right to gun ownership until the 2008 Supreme Court decision of District of Columbia v Heller. Prior to that, it was widely seen as applying only, in the words of the Amendment itself, to a “well-regulated militia.” Yet now that amendment has been expanded not only into an individual right, but also into one very widely protected against state intervention—testimony to the change in personnel at the Supreme Court, as well as to the power of the gun lobby (the NRA) in the US. Bruen is also inconsistent with Dobbs, which insisted that abortion was a matter for states to decide—but gun regulation apparently is not. This is a very selective sort of federalism. And, as with the Dobbs decision, out of step with public opinion.
Religion
Another victory for the Supreme Court last term concerned religion. Now the First Amendment enjoins the US from making any law “respecting an establishment of religion,” and until relatively recently, the court appeared cautious of doing anything that appeared to endorse the role of religion in public life—such as enforced prayers in public schools. However, this court has shown itself much friendlier to religion than its predecessors (or at least, the Christian religion—Islam and other minority religions have not fared so well).
In Kennedy v Bremerton, the court held (6:3) that a high school football coach had a constitutional right under the First Amendment’s free exercise of religion clause to pray at the 50-yard line after his team’s games, and in so doing, overruled decades of precedent on whether a public action could be understood as endorsing religion. In Carson v Makin, the court ruled (again 6:3) that Maine’s exclusion of religious schools from its state tuition assistance payments (to parents who live in remote regions where there are no state-funded schools) discriminated against religion, by violating the free exercise clause of the First Amendment. Carson was the first case where the court has explicitly required taxpayer funding for a religious activity. Ironically, given the present court’s originalist ideology, it is hard to identify support among the framers of the Constitution for such an approach—James Madison stated that requiring taxpayers to sponsor religious activity was “itself a signal of persecution.” Notice here that the six conservative justices are all practising Christians (indeed, all six were raised Catholic, although Gorsuch’s religion now appears to be Episcopalian). Nothing wrong with that, you might say (and Sonia Sotomayor, a seventh Catholic, was in the Dobbs dissent) but it is almost unimaginable that an avowed atheist, or even agnostic, would be appointed to the court even by a Democratic president, and highly unlikely for Muslims, Hindus and adherents to many other world religions.
The administrative state
One other category of cases merits consideration. Two recent decisions, in which the court blocked federal measures crafted to mitigate such emergencies as the pandemic in one case and climate change in the other, exhibit a resistance to the modern administrative state. Both cases concerned measures taken by federal administrative agencies—bodies authorised and recognised as necessary by Congress, which could not itself regulate these challenges in the detail required.
However, for many, including the conservative majority on the court, such agencies have become too powerful, and it has recently turned to the controversial and unsettled “major questions” doctrine—barely used or recognised in the past—to restrain them. According to this doctrine, where an agency has acted in an area of particular political or economic consequence, there must be explicit Congressional authorisation. A general Congressional empowering provision will not be sufficient. Thus, in National Federation of Independent Business v Department of Labor, the court rejected a regulation requiring businesses of over 100 employees either to mandate Covid vaccination or testing and masking. Although the agency submitted that the regulation would save 6,500 lives, and fell within its core mission to protect employees from being “exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” the court nonetheless held that Congress had not authorised the agency with sufficient specificity.
In its West Virginia v EPA decision, the court invoked the major questions doctrine to block a measure from the Environmental Protection Agency requiring companies to switch at least some of their electricity production from coal to natural gas or renewable energy sources, so as to reduce CO2 emissions. One would have thought the Congressional statute sufficiently specific, as it clearly authorised the EPA to require the “best system of emission reduction which… the [EPA] Administrator determines has been adequately demonstrated.” Yet once again the court used the major questions doctrine, and so this important provision to deal with climate change was nullified. But the court’s reading of the provision was highly subjective. Indeed, the major questions doctrine is a judicially-crafted theory that is unclear in scope and capable of manipulation (and also an exception to the court’s highly deferential standard adopted in a 1984 case called Chevron). Writing in dissent in West Virginia, Justice Kagan lambasted the textualism of the current court, a philosophy different from, but closely related to, originalism: “The current court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.” Kagan added that “The court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening.”
Perhaps, in the past, Congress might have adopted further legislation to deal with the issue. But given how highly polarised Congress now is, it is very difficult to pass any legislation. The court has the last word, even in the face of so pressing a challenge as climate change.
This conservative revolution did not happen overnight
These are some of the court’s recent “highlights,” and there are reasons to fear what it will do next. In particular, the court seems to be preparing to advance a theory even less established than the major questions doctrine. In autumn 2022, the court will hear the Moore v Harper case, which concerns a dispute over legislative districts in North Carolina. This case raises the “independent state legislature theory,” which holds that state legislatures may not be constrained when setting rules for federal elections, even if these rules violate their state’s constitution. This theory privileges state legislatures over all other state organs, thus giving them a wide power to gerrymander and adopt voter suppression laws. It has been rejected on many previous occasions, and derives from no coherent account of federalism. Adoption of such a theory could have extremely serious consequences for US democracy—it would enable a state legislature to mandate that it could appoint its own electors in a contested presidential election (consistent with the scheme that Trump and his lawyers advanced to overturn the 2020 election).
A transformed court
So just how did the US Supreme Court get to a situation where it could hand down decisions such as Dobbs or Bruen which are clearly at odds with the views of a majority of American voters? Of course, this conservative revolution did not happen overnight. Back in the 1970s and 80s, the Republican Party adopted a policy of prioritising evangelical voters, and transformed itself into an anti-abortion party. Although when Roe v Wade was decided, perhaps more Democrats than Republicans were opposed to abortion, things soon changed, and by 1980, any Republican presidential candidate was committing to nominate judges who opposed abortion.
For some time, even if the court seemed reasonably liberal on matters of personal autonomy (thanks partly to the “swing vote” of Justice Anthony Kennedy) it was delivering some decisions which had a serious impact on democracy. Three merit special mention.
Famously, in Bush v Gore, in the presidential election of 2000, five conservative justices terminated the Florida recount and effectively handed the presidency to George W Bush, although Al Gore received about half a million more votes throughout the US. The court did so on the basis of an unfamiliar and never-again-used interpretation of the Constitution’s 14th Amendment guarantee of “equal protection of the laws.” The court held that, because there was no Florida-wide standard for the recount of ambiguous votes, this denied Florida voters the equal protection of the law, meaning the recount should be abandoned.
In 2010, in Citizens United v Federal Election Commission, the court’s conservative majority held that the First Amendment blocks Congress from placing even minor limits on how corporations employ their financial resources to support political parties during elections. The First Amendment, which requires that Congress shall make no law infringing freedom of speech, is drafted in very general terms, and says nothing about corporate rights. But, as a result of Citizens United, vast sums of corporate money flooded the US election process.
In Shelby County v Holder in 2013, the Supreme Court struck down a critically important provision in the 1965 Federal Voting Rights Act that required certain jurisdictions with a history of voter discrimination to obtain federal “preclearance” to pass any new electoral or voting laws. The Supreme Court majority found federal oversight to be “out of date.” However, as a result, voting soon became much more difficult—usually to the detriment of minorities—in many states such as Texas, where strict voter ID laws were immediately introduced which had been blocked under the preclearance system.
The overall trend in the Supreme Court had been very much in a conservative direction for some time. Indeed, the overruling of Roe had seemed likely even before the Dobbs opinion was leaked in May 2022. In 2021, the court rejected challenges to the unparalleled Texas “Heartbeat Act” that authorised private parties to bring lawsuits against anyone facilitating an abortion in Texas after six weeks of pregnancy. As the Texas law appeared clearly unconstitutional, the court’s willingness to let it stand presaged its future denial of any constitutional right to abortion.
Changing composition
Nonetheless, there is still a noticeable difference between the Supreme Court of today, with its conservative supermajority of 6:3, and the court in the earlier 21st century. Although there had been a (nominal at least) conservative majority of 5:4 on the court for some time, some of those conservatives—such as Sandra Day O’Connor and Anthony Kennedy—very often provided a swing vote, aligning with their liberal brethren in cases such as Casey.
Two factors notably changed this. First, President Trump’s vow to appoint Supreme Court justices who would overturn Roe v Wade; and second, his ability to actually do so, facilitated by Mitch McConnell as Republican Senate majority leader. McConnell denied a Senate hearing to Obama Supreme Court nominee Merrick Garland, on the basis that the hearing would be in the same year (although months away from) the 2016 presidential election. He was later, and completely inconsistently, willing to push through the confirmation of Trump nominee Amy Coney Barrett when presidential voting had actually commenced in 2020. As a result, Trump was able to appoint three justices, albeit in these controversial circumstances, and this has made all the difference.
Supreme Court confirmations have become notably more contentious and bitter this century, and votes now tend to fall along tight party lines. In October 2018, Brett Kavanaugh was appointed after the Senate voted 50 to 48 to approve his confirmation, in what was apparently the narrowest margin for a Supreme Court confirmation since 1881. The vote followed weeks of anger and protest over sexual assault allegations made by Christine Blasey Ford. In April 2022, Ketanji Brown Jackson was confirmed as the first black woman to sit on the Supreme Court bench. But her confirmation was once again largely along party lines, and she was subjected in the hearings to Republican attacks on her judicial sentencing record, as well as a vehement (and irrelevant) line of questioning on critical race theory by Senator Ted Cruz. In contrast, a generation back, Justice Ruth Bader Ginsburg—a justice of highly progressive views—was confirmed 96 to three in 1993, and Antonin Scalia—of dogmatically originalist and conservative views—was confirmed by 98 to 0 in 1986. So things have certainly changed.
Although it has frequently been claimed—often by Supreme Court justices themselves, on both sides of the political spectrum—that the court is an apolitical body, this is almost impossible to accept. Mississippi filed its Dobbs appeal in June 2020, but the Supreme Court only accepted it in May 2021, after Justice Ginsburg had died and been replaced by Amy Coney Barrett and so the composition of the court had changed. This supports the theory of Linda Greenhouse at the NYT that the case was “a vehicle the newly empowered anti-abortion supermajority was waiting for.” As Justice Sonia Sotomayor asked of Scott Stewart, the Mississippi solicitor-general who argued Dobbs (and a former law clerk to Justice Thomas). “Will this institution survive the stench [created] in the public perception that the Constitution and its reading are just political acts?”
The court is in thrall to judicial conservatism, and not the Burkean kind
There are other troubling features of today’s court, not least its recent extremely heavy use of what specialists call the “shadow docket,” which is a procedure allowing even very important issues to be disposed of on procedural grounds rather than on their merits, often with brief or unsigned opinions. The Texas “Heartbeat” challenge was decided in this way, with an unsigned majority opinion that was only one page long. As Justice Elena Kagan declared, the majority decision was “emblematic of too much of this court’s shadow-docket decision making—which every day becomes more unreasoned, inconsistent, and impossible to defend.”
The rejection of precedent has led to vilification (even by conservatives) of Chief Justice John Roberts, who has urged respect for precedent in the attempt to defend the court’s legitimacy. The court is in thrall to judicial conservatism of a different kind to the older, more Burkean conservatism, which decried “judicial activism.” Now the court seems willing to slash and burn long-established precedents, often using tenuous reasoning derived from a questionable and often inaccurate originalism, or an embrace of little-used theories.
What then is to be done? The recently appointed Trump justices—Gorsuch, Kavanaugh, Barrett—are relatively young, and have many more years on the court. In the face of this, some have suggested expanding the numbers on the court, or imposing term limits and allowing each successive president to appoint three justices. Not all such proposals would require Constitutional amendment (which is almost impossible to attain), but they would require approval in the Senate—very difficult with the present filibuster and current polarised political climate. In his new book Our Unfinished March, (which concerns the diminution of voting rights in the US) former US Attorney-General Eric Holder, in considering how this erosion of rights came about, quotes Hemingway’s famous saying: “gradually and then suddenly.” That, sadly, summarises the situation after the Supreme Court’s past year.
