Scott Gurvey

The first Monday in October does not get a special note on most calendars, unless you are in the government or parts of the legal profession. This is the day the Supreme Court of the United States usually begins its term. And this term is expected to be more notable than most for the government’s least visible branch.

The expectations are probably the reason several of the usually reticent judges who sit on the court have been unusually public in their comments and complaints in recent weeks following a three month “recess” which was also unusual for the amount of news it made.

The Griping Justices

Nearly a year ago Justice Samuel Alito gave a speech to the right wing Federalist Society, the one which has been picking court nominees for Senator Republican leader Mitch McConnell and Republican presidents for years. Bemoaning what he characterized as growing threats to free speech and religious liberty, Alito took aim at the Supreme Court’s historic decision that same-sex couples have a right to marry, along with recent cases on abortion rights and restrictions imposed to prevent the spread of Covid-19. The speech drew widespread criticism from legal scholars, advocacy groups, senators, and others, who suggested that Alito exercised poor judgment and may have crossed ethical lines.

During the recess Alito complained about criticism the court’s conservative majority had hidden behind it’s “shadow docket” in allowing a new Texas law to take effect before its constitutionality made been reviewed.

Earlier this month, the newest justice, Amy Coney Barrett, gave a speech lamenting how the Court is
viewed as partisan and warning that her fellow justices must be “hyper vigilant to make sure they’re not letting personal biases creep into their decisions.”

Barrett spoke at the University of Louisville at, of all places, the celebration of the 30th anniversary of the opening of the McConnell Center. That’s as in Senator Mitch McConnell. The irony is so thick you need a knife to cut through it. It was the Republican’s unseemly rush job which successfully installed the right wing Trump campaigner Barrett into the still warm seat that had been occupied by the champion of women’s causes Rugh Bader Ginsberg.

That rush job, after McConnell denied President Obama the right to fill the seat of Justice Antonin Scalia, triggered the latest group of public criticism as people rightfully fear the new 6-3 right wing majority on the court will impose its own ideology. That ideology is increasingly out of step according to the latest polls, with trust in the court its lowest since it placed George W. Bush into the White House even though he had lost the popular vote for president.

That same week Justice Clarence Thomas spoke at Catholic Notre Dame University, blaming the media for the Court’s declining image, “I think the media makes it sound as though you are just always going right to your personal preference,” he said. “So if they think you are anti-abortion or something personally, they think that’s the way you always will come out. They think you’re for this or for that. They think you become like a politician.”

Thomas is probably the most predictable of the “politicians” on the court. He is also a walking, talking conflict of interest. We have no way to tell how many times he has ruled on a case involving clients of his Republican lobbyist wife. That’s because the Supreme Court justices are the only judges in the entire country who do not have to adhere to a code of ethics. Congress imposes one on other federal judges, but it is believed the Constitution allows only the Supreme Court to impose such a code on itself.

To be fair Justice Stephen Breyer, of the left wing, has also been out and about. Breyer is pushing his new book and complaining that the growing image of the Court “could undermine both the Court and the constitutional system of checks and balances that depends on it.” Breyer, the oldest sitting judge at 83 years, has been under increasing pressure to retire and allow President Biden and the very slim Democratic majority in the Senate to replace him with a young progressive before Democrats lose their Senate control. He’s made it clear he’s not going to do so. And progressive Justice Sonya Sotomayor, who has written some harsh dissents from the opinions of the right wing majority, is warning that there will be more in the months ahead.

By the time the last term ended in June it had become clear that the Roberts court, with Chief Justice John Roberts providing the swing vote, is over. The age of right wing justice has begun. Now it begins in earnest.

The New Term

The new term, dominated by six Republican appointees, promises to bring more of the last tumultuous year. On abortion, still the hottest legal issue in the nation fifty years after 1973 the decision in Roe v. Wade, the Court seems ready to overturn its ruling that states could not ban the procedure before viability defined as the end of the second trimester. On December 1 it will hear a challenge, Dobbs v. Jackson Women’s Health Organization, to a Mississippi law that bars most abortions after 15 weeks. The law is a direct challenge to the precedent set in Roe and specifically asks that that decision be overturned.

This summer, acting under the cover of the “shadow docket” and made public at 11:58pm, the Court refused to delay the implementation date of a Texas law that effectively bars abortions in that state after the first six weeks. Justice Alito complained that the media had depicted the conservative court as a “cabal” deciding cases in secret and in the “middle of the night.” That is exactly what they did. It is absurd to believe that the Court would let the Texas law go into effect without the expectation that Roe will have been overturned by the time challenges to it make it to the top court.

Also this summer, using the shadow docket and with Roberts dissenting, the court’s conservative majority rejected the Biden administration’s policies on asylum and evictions.

The Court having already eviscerated voting rights, can be expected to refuse to block Republican gerrymandering during the upcoming redistricting season, or to block attempts to challenge legislation enacted in dozens of states designed to restrict access to the polls by people of color.

It has been more than 10 years since the Court considered a Second Amendment case. On November 3, it will hear a challenge to the constitutionality of a New York law, New York State Rifle & Pistol Association v. Bruen, that limits the carrying of guns outside the home.

There is also a religion and government case to be considered before the end of the year. On December 8, the Court will hear Carson v. Makin, a challenge to a law in Maine which excludes religious schools that offer religious education from participating in a state tuition program.

We Can Listen

Due to the Covid restrictions the Court hasn’t actually sat together in its courtroom for some eighteen months. It could easily have allowed us to watch its Zoom sessions. but no such luck. We were allowed to listen to the audio as it actually occurred, something of a major breakthrough for the camera shy justices who seem to forget they are employees of the people and are doing the people’s business.

Some day there may be some light at the end of the Court’s tunnel, the Senate Judiciary Committee has approved legislation expanding the use of cameras in federal courts, which may put the judges, including the Supremes, on television. The Court, of course, opposes it. But the Congress pays the bills.

As for now, Covid restrictions will still keep the public out of the courtroom. But the audio of the hearings will be transmitted as they are happening.

Watch. It’s a start. And remember, the president and senators choose the judges. But we elect them. The ultimate responsibility for the decisions they hand down lies with us.

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