After a tumultuous year at the Supreme Court — with a dramatic ruling on abortion rights, angry protests at the justices’ homes, an internal draft opinion leak investigation, and a bench retirement — the reconstituted nine justices look ahead to a new term filled with internal divisions and public unease over their direction in a politically infused docket.
More of the same will be the goal of the 6-3 conservative majority as it prepares for its Oct. 3 debut, hoping to push the court further rightward on hot-button issues like affirmative action, religious liberty, and voter redistricting, which is likely to shine a harsh new political spotlight on the third branch.
“There’s no question that tempers flared and passions have stirred, over the last term. The court divided into a lot of hot-button issues that render decisions that frankly made a lot of people unhappy,” said Thomas Dupree, a prominent appellate attorney and former Justice Department official. “But I don’t think it’s going to distract the justices, these men and women, from doing their job faithfully applying the Constitution.”
A change at the Supreme Court will bring a new dynamic and new opportunities to shape the law, with Justice Ketanji Brown Jackson becoming the first Black woman on that exclusive bench.
In a few emergency appeals that have come her way this summer, Jackson has consistently sided with her liberal colleagues. The real measure of her judicial philosophy will come when she rules on the merits on upcoming divisive issues, including:
Affirmative action, and whether universities can continue to consider race when using individualized admissions criteria. Free speech vs. workplace discrimination, and whether business owners can refuse services to LGBTQ+ customers based on religious liberty claims. Voter redistricting, and the discretion of state legislatures to create congressional election boundaries.
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Other disputes include federal immigration policy, property rights, and environmental regulation.
“We’re seeing this court take a huge hit in its favorability ratings, and people across the country, particularly women, are looking at this court and thinking these rulings don’t seem to be based in the law or the Constitution. They seem to be coming from a conservative political agenda,” said Elizabeth Wydra, president of the progressive Constitutional Accountability Center. Especially on the court’s ruling striking down Roe v. Wade, she said, “a lot of people are left with questions about the legitimacy of the court itself.”
LEGITIMATE CONCERNS?
“Legitimacy” has become the new buzzword — especially among some Democrats — in the one branch of government supposed to be free of partisan politics. Chief Justice John Roberts, in remarks several days ago to fellow judges and lawyers, again lamented eroding public trust.
“If the court doesn’t retain its legitimate function, I’m not sure who would take up that mantle. You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide of what the appropriate decision is,” said Roberts. “Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court.”
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That may be wishful thinking, but Roberts suggested the courts continue doing what they traditionally have, done: hunker down and do the job.
In an unusual public statement Wednesday, Justice Samuel Alito — the author of the Dobbs abortion ruling — responded to the broader criticism, including Vice President Kamala Harris attacking what she sees as an “activist court.”
Alito said, “It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”
But some progressive justices have lamented what they see as the conservative majority’s eagerness to wade into politically explosive cultural disputes, and its willingness to overturn precedent, including Roe v. Wade.
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“When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem — and that’s when there ought to be a problem,” Justice Elena Kagan said at a recent legal conference. “If, over time, the court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.”
But a new Fox News poll found just 42% of those surveyed approved of the Supreme Court’s job performance — with a majority 52% disapproving. Just five years ago, the numbers were reversed — 58% approving, 31% disapproving.
And when it comes to the controversial abortion ruling, our poll found just 32% approving of the decision reversing Roe v. Wade, with 63% disapproving. And 57% support making abortion legal all or most of the time.
LEAKY FOUNDATION
As far as who leaked the draft opinion of the abortion ruling, the mystery continues.
“The Chief Justice appointed an internal committee to oversee the investigation,” Justice Neil Gorsuch said recently. “That committee has been busy, and we’re looking forward to their report, I hope, soon.”
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Gorsuch, Kagan, and retired Justice Stephen Breyer have all publicly suggested the leaker remains unknown.
Sources have told Fox News the probe conducted by court Marshal Gail Curley has narrowed its list of possible suspects, but there is no indication that person or persons have been identified or sanctioned.
The draft opinion — where a majority of justices were prepared to toss out the nationwide, constitutional right to abortion — was leaked to a media organization, an unprecedented breach of the court’s tightly held internal protocol. The draft turned out to be how the court eventually ruled two months later, but its fallout is still being felt.
“Look where we are, where now that trust or that belief is gone forever,” Justice Clarence Thomas said shortly after the leak became public. “When you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder. It’s like, kind of an infidelity that you can explain … but you can’t undo it.”
Thomas was not exaggerating. The leak has rocked the internal dynamics of the court that promises to carry on indefinitely.
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Another evolving dynamic will come with the newest justice taking the bench on Monday as Breyer’s replacement. Her colleagues will watch to see how quickly she adjusts to a fractured court, and whether she will be the strong progressive voice Biden and her supporters have promised.
“She is going to be a wonderful justice,” Roberts said in September. “It almost causes us to up our game a little bit” to have a new member, he added.
Jackson’s status as the first Black woman on the court will also likely ramp her status as a celebrity in robes, similar to Justice Sonia Sotomayor, the first Latina on that bench.
The newest the justice has already been inundated with speaking invitations, and has a comic book, bobblehead figurine and upcoming children’s book honoring her.
And the court promises to be a popular topic with voters in the midterm elections, where both Republicans and Democrats concede the landmark abortion ruling will be a referendum of sorts on the court’s reputation.
Our Fox News poll of registered voters found 45% are “extremely concerned” about abortion policy, on par with crime rates and the future of American democracy, but trailing the economy.
With renewed calls from progressives to “pack” the court with more justices — and a summer of organized protests outside the homes of conservative justices that has led to round-the clock security — even calls for impeaching individual justices — the politics of the moment will likely weigh upon the new term, especially if the leak investigation peters out unresolved.
“This is obviously a challenge for the chief justice, bringing the court into a new term and getting this leak in the rearview mirror,” said Paul Clement, a leading appellate attorney and former law clerk for Justice Antonin Scalia. “But the court hasn’t had this kind of leak before and that’s to the benefit of the court, a signal that as awful as the leak was, it’s not a sign the institution needs fundamental reform.”
