Court's Standing Sags as Politics Overtakes Law

             The Supreme Court is set to open a new term with two politically charged cases at the top of its agenda just as its standing with the American public is sagging, according to two recent public opinion polls. The justices ought not pay too much attention to their standing in the polls, of course, but three justices appear from their recent lecture circuit talks to have concluded that many Americans are viewing the Court today as a partisan branch of government instead of as a temple of equal justice under the law.

            None of the three – Breyer, Thomas, or Barrett – specifically referred to the higher-than-normal disapproval for the Court, as measured by the most recent Gallup Organization poll. But Justice Amy Comey Barrett seems to have had the Court’s image in mind when she spoke at the University of Louisville’s McConnell Center with McConnell himself on stage, less than one year after the Senate’s Republican leader fast-tracked her nomination through to a party-line confirmation vote.

            “My goal today,” Barrett told the audience, “is to convince you that this court is not comprised [sic] of a bunch of partisan hacks,” according to the account by Courier-Journal reporter Mary Ramsey. “Judicial philosophies are not the same as political parties.”

            Today, however, the justices of the 21^st century Supreme Court are divided on judicial philosophies for the first time in history in exact correspondence to the political party of the president who appointed them: six Republican-appointed conservatives and three Democratic-appointed liberals.  

            The Court’s lopsided conservative majority results from the most partisan of tactics deployed by McConnell as Senate leader – first by blocking President Obama’s nomination of Merrick Garland in 2016 and then by changing Senate rules with Donald Trump in the White House to allow floor votes on Supreme Court nominees with fewer than sixty votes. Under the previous rules, none of Trump’s nominees – Barrett, Neil Gorsuch, or Brett Kavanaugh – would be sitting on the Supreme Court today.

            Now, the Court is about to hear arguments one month apart in two cases that each pose simple legal issues raised in the context of politically contentious issues: reproductive rights and Second Amendment gun rights. Conservative interest groups have engineered and mobilized behind the two cases: Mississippi’s effort to overrule a critical part of the Roe v. Wade abortion rights decision and an effort by New York gun rights groups to guarantee a personal Second Amendment right to carry firearms outside the home.

            Mississippi’s health director is the petitioner in Dobbs v. Jackson Women’s Health Organization, set to be argued on Dec. 1. Mississippi enacted a law that prohibits abortions after the fifteenth week of pregnancy, in flat contradiction – as found by two lower federal courts – of the Roe v. Wade line that guarantees a qualified right to abortion up to the point of fetal viability, roughly the twenty-fourth week of pregnancy.

            Apart from President Trump’s vow to name justices who would vote to overrule Roe v. Wade, Mississippi’s appeal would have called for a summary affirmance of the lower court decisions without full briefing and oral arguments. The Court has reaffirmed Roe v. Wade time and time again since a Republican-majority Court issued the 7-2 decision in 1973. Two decades later, another Republican-majority Court in Casey v. Planned Parenthood (1992) rejected by a 5-4 vote a plea by anti-abortion groups to overrule Roe v. Wade.

            The law has not changed since 1992, but the Court’s politics has changed in deference to the Republican Party’s lockstep alliance with so-called pro-life groups. The anti-abortion groups that have massed behind Mississippi’s effort to salvage its anti-Roe v. Wade law are arguing, wrongly, that the trimester framework the Court crafted in the 1973 decision has proved to be unworkable. Respect for precedent is one fundamental principle of Supreme Court jurisprudence; an equally important corollary teaches that the Court ought not overrule a prior decision merely because of changes in the composition of the Court.

            In the other of the two hottest-button cases, the Court will consider an effort by New York gun rights groups to invalidate a state law that requires an applicant for a gun permit to show “proper cause” for needing to carry a firearm on the streets, outside the home. The Court in its landmark Second Amendment decision in Heller v. District of Columbia (2010) took care to limit the personal right to “keep and bear arms” to the home. In writing the majority opinion, Justice Antonin Scalia said that the decision did not cast doubt on laws that prohibited possession of firearms by felons and the mentally ill or laws that prohibited carrying weapons in sensitive places such as schools and government buildings.

            The various briefs supporting New York’s position in New York State Rifle and Pistol Association v. Bruen highlight the long tradition of municipal laws – dating from colonial days – regulating the authority to carry firearms in public. New York’s law fits comfortably within the tradition and history of local regulation that dates from the adoption of the Second Amendment. In today’s urban environment, those regulations are all the more important to protect innocent citizens from gun violence perpetrated by concealed-carry permit holders.

            The law in these two cases is clear, apart from the Republican Party politics that has transformed the Court and taken over the federal judiciary. The justices who worry about the Court’s image can best serve that goal by setting aside their politics just as they claim that black-robed justices do as a matter of course. As the Court opens a momentous term, however, many signs point toward to the likelihood of political decisions in both of the high-profile cases.