Sunday, November 27, 2022

The year that Supreme Court conservatives left their mark

Conservatives on the bench, including all three of former President Donald Trump’s candidates, are voting to directly challenge Rowe against Wade and hear a Second Amendment case that could expand gun rights. They have moved to strengthen the protection of religious freedom and may soon take positive action and resolve electoral disputes. Perhaps most notably, the court allowed the Texas six-week abortion ban to remain in the books, even though this directly contradicts the court’s nearly 50-year precedent.

The past 12 months have confirmed not only where the court is heading, but how quickly it can get there.

Looking at the prospect of decades of disagreement in the cases that have the most public attention, some progressives want to increase the number of judges in court in order to weaken the conservative majority. But the commission set up by President Joe Biden to study judicial reform did not make any formal recommendations, but only noted that there is “deep disagreement” over whether the court should be expanded. This means that if Judge Stephen Breuer, 83, announces his retirement by July, as many expect, his replacement will be younger and perhaps more liberal, but she may end up in the minority on the most socially divisive issues throughout most of their tenure.

Barrett factor

Biden’s first appointment is likely to come less than two years after Trump put his last appointee, Judge Amy Coney Barrett, to the Supreme Court. Since the death of Judge Ruth Bader Ginsburg in September 2020, Republicans have accelerated their efforts to secure Barrett’s approval ahead of the election.

Barrett immediately announced his presence. For example, while Ginsburg was still alive, the court rejected emergency calls from houses of worship over government covid restrictions. But Barrett’s vote changed the course of this controversy, shifting the majority in favor of meetinghouses.

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Around the time of Barrett’s approval, the Supreme Court also began to consider whether or not the Mississippi abortion law would prohibit the procedure after 15 weeks of pregnancy. Behind closed doors, the judges pondered for months whether to accept the case before issuing a certificate in May. Shortly thereafter, Mississippi raised the stakes in its opening statement, asking the court not only to uphold its law, but also to overturn Rowe.

The case brought judges back to the center of an issue that had dominated confirmation hearings and public discourse for the past several decades.

During the oral debate in December, Roberts expressed a position of compromise that could prevent the majority from overturning the landmark decision at such an early stage in the new court’s tenure. At the time, Roberts’ approach did not seem to attract the interest of any of his conservative colleagues, but that may change when they pursue the case behind closed doors.

Meanwhile, another abortion case surfaced this fall, temporarily overshadowing the Mississippi controversy. It was about a Texas law banning abortion after six weeks, which was rewritten to keep disputes from going to federal courts.

The Texas Legislature has indicated that Texas cannot enforce the law. Instead, people from anywhere in the country could sue in a state court against anyone they thought helped a woman get an abortion. Critics noted that so-called “bounty hunters” could potentially receive more than $ 10,000 in compensation. Doctors in the state, frightened by the prospect of fines, stopped performing abortions covered by the law, effectively bringing the state’s constitutional law to a standstill.

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The Supreme Court allowed the law to go into effect on September 1 due to opposition from Roberts and the three Liberals, and later agreed to an expedited hearing in November.

During the oral debate, it emerged that Judges Brett Cavanaugh and Barrett were concerned about the structure of the law. But when the decision was made on December 10, they sided with the majority to keep it in effect. In the end, the court offered abortion providers a narrow path to challenge the law, but so-called “bounty hunters” can still file lawsuits and clinics are unlikely to reopen in the near future.

Roberts, joined by the Liberals, indicated that the decision would inspire imitation laws.

“The nature of the violated federal rights does not matter,” he said, “the role of the Supreme Court in our constitutional system is at stake.”

The case also highlighted the fact that the Conservatives are no longer dependent on Roberts to move the court to the right.

Roberts used to joke about this before.

“I realized early on that when you hold the reins in your hands, you have to be careful not to jerk them too hard – you will find that they are not connected to anything,” he told the audience in New England Law in 2016. This is now his reality.

Continue turning right

The shift of the court to the right was evident not only in the area of ​​abortion.

At the end of the deadline in July, a 6-3 court limited the ability of minorities to challenge state laws that they believed were discriminatory under the historic Voting Rights Act.

In another 6-3 decision, the court also overturned a California ruling that required charities to disclose their donors, a decision that could have led to the overturning of other political donor disclosure laws, which would have increased the amount of anonymous money in the political sphere. system.

The 6-3 court also eased union leverage in a property rights dispute outside of California.

But sometimes the pace of the court did not satisfy the right flank of the court. In June, a court ruled in Fulton v. Philadelphia in favor of a Catholic foster care agency that refused to work with same-sex couples. The majority of the court said Philadelphia violated the First Amendment when it froze the agency’s contract because it believed that marriage should be between a man and a woman.

But judges Samuel Alito, Clarence Thomas and Neil Gorsuch, while agreeing with the conclusion, were still disappointed. They wanted a court to overturn a 10-year-old precedent – called Employment Division v. Smith – which would make it much harder for the government to enforce laws that burden some people’s religious beliefs. Remarkably, neither Barrett nor Cavanaugh were willing to go that far. This prompted Alito to criticize the slowness of the trial.

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“Those who are counting on this court to support the First Amendment have every right to be disappointed – and so do I,” he wrote.

No rest for nine

At the end of most sentences, the judges leave Washington to enjoy the quiet summer months before the new term begins in October. This did not happen this year. Instead, the judges’ summer was cut short by statements of emergency.

Due to opposition from three liberals, the court refused to suspend a lower court ruling that required the renewal of one of Trump’s immigration policies. It also blocked Biden’s moratorium on evictions imposed during the pandemic. And Barrett turned down a request to block vaccinations at Indiana University.

By the time the new term began in October, the judges were already fully engaged and the court introduced a new oral argument scheme that significantly changed the way cases are handled. Instead of the quick firefights of yesteryear, when judges often interrupted each other, the new format allowed judges to conduct an indefinite round of interrogation after the official expiration of a lawyer’s term.

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Judge Clarence Thomas is pleased with the new format, who, after years of almost complete silence during the oral debate, now starts every meeting with a question.

Arguments also take much longer, 42% longer than the time initially allotted by the court, according to Goodwin Law’s analysis.

This became apparent on November 3 when judges suggested they were prepared to overturn New York City’s firearms law. It has been ten years since the court ruled in a major Second Amendment case, and now it will happen in the first full term of all three Trump candidates.

They also filed a religious freedom case in December, in which a majority expressed skepticism about the arguments for Maine’s Tuition Assistance Program, which allows parents to use vouchers to send their children to private schools, but excludes religious schools from the program.

New minimum

As the term of office continues, polls show that the court’s approval rating has hit a new low. In the fall, several judges took the unusual step of appearing in public, sometimes defending the institution.

“My goal today is to convince you that this trial is not a bunch of guerrilla break-ins,” Conservative Barrett said at an event hosted by the University of Louisville McConnell Center in September, as reported by the Louisville Courier Journal.
Breuer expressed skepticism about plans to add members to the court in an interview with CNN’s Joan Biskupich. Alito defended how the court handles cases that fall on the urgent list in a speech at the Notre Dame School of Law, also in September.

But, apparently, the speech of Judge Sonia Sotomayor resonated with the liberals.

“There will be a lot of frustrations with the law, a huge number,” she said at an event hosted by the American Bar Association. “Look at me, look at my objections.”

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