Richard P. Swanson, Esq.
Written by: Opinion by Richard Swanson, NYCLA President-Elect
Published On: Oct 02, 2023
Category: News & Insights

As the Supreme Court opens its new October term (“the first Monday in October,” which has its origins in the ancient English academic calendar), this is a good time to take a look at the past term completed in June.  Maybe July would have been better, but better late than never.

The most striking thing about this past term was how little was actually striking.  No complete gutting of the Voting Rights Act.  The Court may have stricken Section 5 of the Act, requiring Justice Department pre-approval of various voting changes in the past, but the Court this past term allowed challenges to actual discrimination in the course of gerrymandering cases (Alabama is presently attempting the nullification of that ruling – shades of the 50’s and 60’s, and I mean the 1850’s and 60’s in addition to the 1950’s and 60’s — and we’ll have to see how that goes).  No adoption of the crazy “independent state legislature” theory in Moore v. Harper.  Judicial review of voting decisions by state legislatures still persists.  Sure, there was the affirmative action ruling in Harvard/UNC, but we all expected that.  The Court had granted certiorari in that case a year before and we all expected them to reverse.  So, the worst potential consequences feared for this past term were avoided.  Or so the consensus goes.

But if you take a big step back, and look at the Roberts Court as a whole, it is amazing how he has patiently adopted much of the Red Team’s agenda for the Court over a long period of time.  GUN RIGHTS, check.  Heller established a constitutional right to personal possession of firearms, not tied to any concept of a militia, and subject to some unspoken level of regulation and control.  Bruen made the regulation and control dependent on history and practice in 1789, before there were automatic weapons and AR 15s, and turning judges into amateur historians.  The coming term we have Rahimi, in which NYCLA filed an amicus brief (thank you Jacqueline Wolff and Manatt), in which the Court is being asked to extend gun rights to perpetrators of domestic violence who seek to keep weapons in their homes, which are also the homes of their victims.  Crazy request, right?

ABORTION, check.  It took 49 years to overrule Roe v. Wade, and 30 to reject the Casey compromise, but reversal has happened, although the Dobbs decision certainly has not ended the controversies surrounding reproductive choice v. murdering the unborn.

RELIGION, check.  No more Lemon v. Kurtzman balancing test.  Religion has a special place in the hearts of these justices, who put their thumb on the scale to promote religious rights as against state neutrality, even using phony cases to advance their agenda.  The Washington high school football coach who wanted to pray on the 50 yard line after each game exercised his right exactly once before resigning to retire and move to Florida.  The Court overlooked in his case that his players no doubt felt some pressure to participate in the prayers if they wanted to play, and it rejected the school district’s argument that it wanted to ban the public prayers to be neutral in its support of religion.  The coach was free to pray privately, or even publicly outside of the officially sponsored school events which is what games are.  But what he really wanted to do was to retire.

Then, this past term, the Court compounded its error by permitting a purported wedding cake designer to discriminate against LGBTQ customers by declining to design wedding cakes for gay customers, claiming her religion prohibited that.  Is there any doubt that if she had refused to serve a Black couple she’d have been found to have violated the Civil Rights Act of 1964?  And, as it turns out, she had never actually designed a wedding cake for anyone.  She was only considering going into the business and was apparently only seeking guidance from the highest court in the land.  Advisory opinion?  Case or controversy?  Standing?

AFFIRMATIVE ACTION, check.  See above regarding the Harvard/UNC case.  And this coming term, the Court will be gutting the Chevron deference doctrine, and thus gutting the administrative state, so check there too.  I blogged about that case last week.

So, if you take a step back and look at the Roberts Court as a whole, much of the Red Team’s agenda has been achieved.  Much more than the Burger Court, which had as its objective stopping the liberal direction established by the Warren Court.  The Burger Court actually defended school busing, among other things.  Much more than the Rehnquist Court.  The Supreme Court operates on much longer time frames than most other political bodies, and certainly longer than business enterprises.  The Burger-Rehnquist-Roberts conservative Courts have lasted for more than half a century.  That is substantially longer than the liberal Court that ran from the New Deal’s “switch in time that saved nine” during the Great Depression, through the Warren Court, Brown v. Board and the progressive decisions of the 1960s.  Before the Court’s “switch in time” the Court was extremely conservative from Reconstruction when the Court invalidated the post-Civil War civil rights acts in Cruickshank through the Lochner era.  And before the Civil War we had Chief Justice Taney and Dred Scott.  

We’re taught in law school to lionize the Court, and mostly we read cases from the John Marshall era, when the core federal and judicial powers were established (although we did have to fight the Civil War to make sure that those powers were preserved), and the Warren era when Brown is the primary feature.  But in fact the Marshall and Warren eras were relatively brief periods in our nation’s history.  And we’ll have to wait at least another generation before the current Court offers any hope of rendering decisions in a more progressive direction.  Unfortunately for me, I have no hope that will happen in my lifetime.

Individual justices also matter.  Is there any doubt that with Justice Kennedy off the Court, the current 6-3 lineup would have decided Obergefell differently?  Is there any doubt that the Court’s decisions would look very different if Mitch McConnell’s year-long refusal to conduct so much as a hearing on Merrick Garland’s nomination were unsuccessful?  Is there any doubt that the Court would look very different if Senator McConnell hadn’t jammed Amy Coney Barrett through in barely two months right before President Biden’s 2020 election?  We don’t like to admit it as lawyers, but when it comes to the Supreme Court, raw politics and power rule.

The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, members, officers, or Board.

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