Consider This from NPR - The Supreme Court just had its most conservative term in nine decades

Episode Date: July 8, 2022

A wave of decisions by the Supreme Court's conservative majority has lead to criticism that the court is more politicized than it used to be. Now there's data to support that claim. Researchers with The Supreme Court Database — which is run by legal scholars from multiple universities — have shown that the court produced more conservative decisions this term than at any time since 1931.NPR's Legal Affairs Correspondent Nina Totenberg joined Jamal Greene, a Constitutional law professor from Columbia University, and Tom Goldstein, the founder of SCOTUSBlog, to talk about the implications of the decisions from the term.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

This message comes from Indiana University. Indiana University performs breakthrough research every year, making discoveries that improve human health, combat climate change, and move society forward. More at iu.edu slash forward. On September 12, 2005, a 50-year-old Federal Circuit judge sat down in front of a packed house at the Senate Judiciary Committee. Good afternoon, ladies and gentlemen. John Roberts would face four days of questions during his confirmation hearing to be the next chief justice of the Supreme Court. But the most memorable moment came right in his opening statement. It was a baseball metaphor. Judges are like umpires. Umpires don't make the rules, they apply them.

They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire. It was meant to explain the heart of Robert's judicial philosophy, that the court was above politics. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat. At the time, the American public generally agreed with Roberts. Polling showed that confidence in the Supreme Court was relatively high, nearly twice as high as confidence in Congress. But fast forward 17 years and Chief Justice John Roberts is presiding over a court facing a very different public perception. A Gallup poll in early June showed confidence in the Supreme Court had dropped to its lowest level since they began collecting

data in 1975. A raft of opinions from the court's conservative majority this term has reinforced the perception that the Supreme Court has become politicized and that those so-called umpires have begun to pitch and to bat, as Roberts might put it. You could hear that perception outside the court when Roe v. Wade was overturned. Yeah, we're outraged at the Supreme Court, the conservative supermajority. They could not win the culture war at the ballot box. The only way to do it was to stack the courts. And they did it. So now they own the courts, lock, stock, and barrel of the gun. You could also hear it in Congress.

Here's Republican Senator Lisa Murkowski after a draft of that decision was leaked in May. It rocks my confidence in the court right now. And you could hear it within the court itself. Here's Justice Sonia Sotomayor during the oral arguments for that case. Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts. But these are just perceptions, right? I mean, what does the data say? This year, the data really support most people's intuitions about what is going on in this court.

Every year, Professor Lee Epstein at the University of Southern California tracks the ideological leaning of each Supreme Court decision. And this year, she and her colleagues found a higher share of cases with a conservative ruling than in any term since 1931. Most of the Roberts Court's terms, there's been sort of a something for you, something for me aspect. There was a little bit of that at the end of the term, but it's not how people think about the term. They think about it as conservative, Republican, and that's what the data show. Consider this.

The Supreme Court just ended its most conservative term in nine decades. We'll walk through the ways the court wielded that conservatism and what it might mean for the next term. From NPR, I'm Elsa Chang. It's Friday, July 8th. and always get the real-time mid-market exchange rate with no hidden fees. Download the WISE app today or visit WISE.com. T's and C's apply. It's Consider This from NPR. Conservative and liberal scholars alike have described this year's Supreme Court term as unusually aggressive.

They've used words like heedless, reactionary, and even the YOLO court, as in you only live once. I think the YOLO description is pretty accurate. That's Columbia University law professor Jamal Green. On the court, you never know how long you're going to have the advantage that you have. And I think you see a court that's aware of that. And they've reached out to decide some cases that they didn't necessarily have to decide. You really see a court that is finding its sea legs, so to speak, given how reliable the kind of ideological advantage is. This term, the decisions they made with that ideological advantage, spanned a broad swath of American life. Here's how NPR legal affairs correspondent Nina Totenberg

describes it. She joined Professor Green and Tom Goldstein, the publisher of SCOTUSblog, to talk with our co-host Juana Summers about the end of the term. The sweeping nature of the decisions, the sheer number of them, amounted to sort of a dream fulfilled for hardline conservatives and a nightmare for liberals and moderates. So in overturning Roe, the court erased a half-century of court precedents and eliminated the right to abortion. Just weeks after the shootings in Uvalde, Texas, the court issued a broadly worded opinion, making it just much more difficult to regulate guns. In a major environmental case, the court curbed the EPA's ability to deal with climate change. And in doing that, it signaled that other government assertions of regulatory power in the name of health and safety could be on the chopping block too. In two religion cases, the court barely mentioned the concept of separation between church and state, instead expanding public funding options for religious schools and ruling in favor

of a high school football coach who wanted to pray on the 50-yard line, a significant expansion of teachers' rights to public, one might even say ostentatious, religious expression while on the job. And I think I'll end there for the moment. Yeah, Nina said that this term was a nightmare for progressives, and that's just not right, because you wake up from a nightmare and it's over at some point. And the problem for the American left is that they are stuck with this one for the next quarter century. And you have a conservative majority that is very interested in kind of moving the goalposts in terms of what is the middle ground here to the right on essentially every conceivable issue that you could imagine. The difference between now and a century ago, when there were

another set of conservative decisions to be sure, is that the Supreme Court is so much more involved in American life right now than it was then. One thing that I think anyone would have to add to that is the court has always been political. There's never been a time in the court's history when its decisions have not intersected in pretty significant ways with politics. I think what you're seeing as different now is, for one thing, the court is involved in many more issues and a wider range of issues than it has been historically. So virtually everything in American politics can arrive at the court in some way these days. And the second point is that it's so far to one side of the ideological spectrum

that people start to notice that the court's decisions are lining up in one direction and only one direction. The court historically has been pretty much in the middle of the political spectrum, and that's been kind of part of the source of its legitimacy over time. One other thing I wanted to mention is that the court is increasingly taking a number of cases and issuing very conservative decisions when it comes to the levers of democracy itself. The Voting Rights Act, campaign finance law, the power of state legislatures to shape congressional and state legislative districts. And so there are going to be a series of rulings that have enormous consequences throughout the country in a way that are very likely to empower Republican and

conservative legislators and governors. And the Supreme Court's fingerprints on some level won't even be on them. As you all look at the decisions that came down in this most recent term, are there a handful of decisions you think that maybe we have not talked about as much, but they're important for people to understand as we look at the court and look at what the implications of this term are? There was a voting rights case out of Alabama that got a little bit of attention at the time that it was decided, but has been overshadowed by events, the court signaled, and the court's going to hear this case in the merits next term, it signaled that it's going to pretty dramatically change the application of the Voting Rights Act, which is going to have a lot of effects, some of them unpredictable, a lot of

effects on American politics. And of course, there's not very much left of the Voting Rights Act. There is some left. But in the last 10 years, the court, even when it wasn't as conservative as this court, pretty much gutted the Voting Rights Act. And Congress, as is its want of late, this is part of the problem, of course, if you have a court that's very right or very left, and keeps telling you, well, Congress, you didn't do this right, and then Congress is unable to do anything about it because it's in gridlock, then it's very hard to hold the court's feet to the fire. What the Supreme Court has done here is a little bit of misdirection. It has said that if there's a big, big problem in American society, Congress has to address it. The president can't with agencies that are within the executive branch. But Congress is broken. Congress isn't doing anything significant. And so what that actually does is really kick the legs out from under a Democrat who is the president when he is faced with a very conservative Supreme Court striking down his agency's rulings. We have heard a number of calls from the left this year for perhaps court packing, the idea of expanding the Supreme Court, perhaps impeaching some justices.

To any of you, how realistic do you think either of those possibilities could be right now? At the moment, I would say that's very far away. Of course, we've seen American society and political directions change very dramatically in a relatively short time of late, so one can never say. Well, Democrats control the presidency, the Senate, and the House of Representatives, and so they could pass a law that changes the number of justices on the Supreme Court from nine to 15 and add six Democratic appointees. It would take a lot of political will. They would have to change the rules of the Senate. But we just had a test case. The Supreme Court overruled Roe versus Wade. I mean, that is as dramatic a conservative thing that you can do. And there wasn't some big uprising in the country to

really get Democratic legislators to vote for that kind of change. And so I think it would be very, very surprising to see something like that. Not only that, the fact is that if you add six members of the court and you court reform right after Roe versus Wade was overturned, there are some court reforms such as term limits that have a little bit of momentum, certainly on the left, and aren't especially partisan. And so I don't think it's necessarily the case that we won't see any court reform in the medium term. But in the next couple of years, I wouldn't expect anything to happen. Let's look ahead now to the next term. Nina, I'll start with you. What are the biggest cases to watch? And do you have any indication on some of those cases what the court might decide? Well, they've already agreed to revisit the

question of affirmative action in higher education. But an extension of that, of course, is affirmative action in employment. And this is a court that's been very hostile to the notion of any racial preferences in either sphere. And I would expect them to reverse, you know, some 40 years or 50 years of precedence. And there is a fairly significant gay rights case out of Colorado involving some tension between Colorado's anti-discrimination laws and a claim of religious freedom. So this is going to be another kind of big culture war kind of case and maybe a test case for taking the court's temperature on gay rights in the wake of the overturning of Roe versus Wade, there's a lot of concern among many on the left and gays who are not on the left about the possibility that the court will revisit some of its earlier precedents protecting same-sex marriage, protecting the right to same-sex intimacy. So there's a case next term, the upshot of which would be that very conservative state

legislatures, many of which have significant numbers of legislators who, for example, are election deniers about the last presidential election, to pass rules and to make decisions about who the state has elected as the president and ignore contrary state court decisions. And that could radically reshape American democracy because you do get people elected to these state legislatures that are extremely aggressively conservative. And the Supreme Court is going to decide whether they have that sweeping power. That was Tom Goldstein, publisher of SCOTUSblog, Jamal Green of Columbia University, and Empire's Nina Totenberg speaking with our co-host, Juana Summers.

That next Supreme Court term begins in 82 days. It's Consider This from NPR. I'm Elsa Chang.