Many Americans were angry when the Supreme Court overturned Roe v. Wade last summer. The dockets the justices have accepted since then have made one thing clear: they will not be shying away from tackling major political issues.
From abortion to election law cases, the court is expressing interest in constitutional questions that dramatically alter long-standing precedents. During the 2021 term, it made more conservative decisions than any time since 1931, according to a study by professors from Washington University in St. Louis and the University of Michigan.
The justices have largely ruled along ideological lines. Justice Alito, for example, sided with his liberal colleagues only 10 percent of the time in the 2021 term.
Data from report by Lee Epstein from Washington University in St. Louis and Keven Quinn from the University of Michigan.
The combination of that and the lack of moderates on the bench is something that professor Elizabeth Beske from the Washington College of Law at American University considers a weakness of the court. When Beske clerked for Justice Sandra Day O’Connor in 1994, decisions were made on a case-by-case basis, she said.
“We don’t have that moderate, kind of ‘I’m going to call each case as I see it, I’m amenable to arguments’ wing of the court,” Beske said. “I think this group has been battle tested and selected based on their adherence and faithfulness to a particular agenda.”
While public opinion of the court has improved since the Dobbs v. Jackson ruling that overturned Roe, it’s still not high. A poll by Marquette Law School in March found that 44% of adults approve of the way the high court is handling its job, compared to 38% in July.
Beske said that the court has had public legitimacy concerns at various points in history, like during the early 1930s progressive era, when an also conservative bench was striking down FDR’s legislation.
“We have the most conservative court that we’ve had in quite some time,” said Beske. “If the country is sort of at a 50/50 razor’s edge, we have a court that is out of step in its polarization and in its conservative leanings, and they’re not afraid to act on it.”
Others feel differently. Appellate specialist Troy Shelton from the Fox Rothschild law firm in Raleigh, North Carolina and member of the Federalist Society (a national organization of conservative lawyers) says that a justice’s ideology is key in the judicial process.
“I certainly think that the court is independent of party and partisan politics,” said Shelton. “They have their own judicial philosophies… If someone’s going to put aside their judicial philosophy, then I wonder how they’re going to decide the cases at all.”
Supreme Court analysts have drawn attention to this court’s willingness to use the major questions doctrine in their opinions. The approach gives the court authority to overturn federal laws if it finds that Congress didn’t “speak clearly” in the legislation. Some argue that the doctrine isn’t a defined interpretation method of constitutional law and rather a conservative legal tactic to undermine legislative powers (Justice Brett Kavanaugh was the first to use it by name in a federal court opinion in 2017 when he was judge of the D.C. Circuit Court of Appeals).
Beske feels that “the court’s increased willingness” to create new doctrines and “march around under a disingenuous” acknowledgment that the legislative branch’s power is superior to their judicial one is “brazenly political.” Though she thinks it could be the court’s attempt to make itself seem neutral, Beske thinks that “the effect is to kind of begin the dismantling of the administrative state.”
The accusations and arguments the judicial and legislative branches throw at each other, at both the state and federal level, are increasingly loud with Moore v. Harper on the court’s agenda.
North Carolina residents sued the state board of elections and various Republican legislators for Congressional redistricting that they argue was partisan gerrymandering. The lawmakers want the court to give them the power to set voting and election rules without limits from the state court or other laws, citing support from the Constitution’s election clause, which gives state legislatures the authority to set the “times, places and manner of holding Elections for Senators and Representatives.” This is also known as the “Independent State Legislature” theory.
Some fear the case could critically change election laws across the U.S. and are calling it a threat to free democratic elections. Shelton says that while the argument on whether the federal constitution can limit state courts’ interpretations of their own constitutions is unusual, the fear is exaggerated.
The doctrine at the heart of the case is known as the “independent state legislature” theory – the idea that, under the Constitution, only the legislature has the power to regulate federal elections, without interference from state courts. Proponents of the theory point to the Constitution’s elections clause, which gives state legislatures the power to set the “Times, Places and Manner of holding Elections for Senators and Representatives.”
“I’m not gonna say that the case is not unusual… [but] I mean, democracy hasn’t died… So I do believe [reactions are] overblown,” said Shelton. If it were true that a single case could upend democracy, it would be a possibility every other term, he said, and “then I guess democracy has died just about every year.”
Other high-stakes issues include freedom of religion, climate change and gun laws. In a recent ruling, the justices said they wouldn’t enforce West Virginia’s law to ban trans athletes from girls’ sports teams at school.
The institution has been swift to accept cases that confront controversial questions this term, covering a lot of ground in a relatively short time.
“I’d love for them to have just a very boring few years in which they take on questions of statutory interpretation that do not raise hot-button issues,” said Beske. “I just wish they would press pause.”
It’s true that the Roberts court has caused an uproar, but that is also true of its predecessors. The Warren court changed the trajectory of America’s future with cases like Brown v. Board of Education and Miranda v. Arizona; the Burger court with Roe v. Wade and United States v. Nixon; and the Roberts court with Obergefell v. Hodges and Dobbs v. Jackson.
“I think radical decisions are sometimes good for the law,” said Shelton.
