Yale’s legal experts unpack the Supreme Court term
Members of the Yale Law community unpack an eventful year for the Supreme Court and discuss the court’s future.
The United States Supreme Court’s 2020-21 term has garnered frequent media attention and continues to be the topic of public conversation — particularly on women’s reproductive rights, University legal experts said.
Law professor Samuel Moyn, long-time Supreme Court correspondent and clinical lecturer in law Linda Greenhouse LAW ’78 and Yale Law Democrats member Adam Gerard ’17 ’23 LAW told the News that recent events have had significant implications on the actions and standing of the court, posing questions on potential constitutional dangers to come.
“Having six conservative justices now provides a big safety net for the conservative wing of the Court, so I think we are going to see a lot more activism,” Greenhouse said. “And that’s really something to watch.”
This past year, Greenhouse said, did not turn out to be the term that conservatives had hoped for nor the term liberals had most feared.
However, Greenhouse explained that a single Supreme Court term is “just a snapshot of an ongoing dynamic,” and the term’s significance lies in the seeds that it plants for decisions to come.
“It wasn’t terribly surprising,” Moyn said. “There will always be victories that both sides of the American political spectrum can claim. But the overall direction of the jurisprudence has been clear for decades now. It will not work, as it gets worse every year, to say every summer that it could have been even more terrible. That is like the response of the frog that boils to death as the water temperature is raised slowly enough that he doesn’t realize he can jump out.”
On Thursday, the conservative-leaning court heard oral arguments on a Mississippi abortion case, with both Greenhouse and Gerard believing that this could lead to an overturning of the 1973 case Roe v. Wade, which protects a woman’s choice to have an abortion. Gerard explained that Texas passed legislation this year that could make abortions a felony depending on the court’s upcoming decision in Dobbs v. Jackson, a case surrounding Mississippi’s 15-week abortion ban.
This year’s court term has gathered a plethora of media coverage, particularly with mass protests wherein thousands marched in support of abortion rights and against the Texas law. While Greenhouse said it is unclear the extent that public attention impacts individual justices and their decisions, she said some justices do pay attention to public sentiment over time.
“Very suddenly, reform of the Supreme Court has become a mainstream concern, as Joe Biden’s creation of a blue-ribbon commission suggests,” Moyn said. “All by itself that is good news, because it begins to take the focus off obsessing about what the justices themselves are doing on the inside, in order to think about the institution from the outside. That is the way democracies are supposed to work: courts are their instruments.”
Greenhouse noted in her new book “Justice on the Brink” that six members of the court now come from a Catholic background, and that religion can be a proxy that presidents use to find justices who would overturn Roe v. Wade.
According to Gerard, even if the court does not overturn Roe v. Wade, significant damage has already been done to the way people live their lives and see their constitutional rights. The abortion bans have harmed women in real time and potentially open the doors to private lawsuits, he added.
This past term, the court also denied former President Donald Trump’s lawyers’ requests to overturn the results of the 2020 election, and also decided to not invalidate the Affordable Care Act with its decision in California v. Texas.
However, Gerard shared that this was the “bare minimum” expectation from the court. He said that they are “setting the bar so low to give credit for not overturning a hallmark of democracy,” and that the court has been “chipping away” at reproductive rights and religious cases and precedents that previously put limits on those rights.
Greenhouse said that the court has been making law in the “shadow docket” by not following the traditional process of hearing a case to come to a decision since Justice Amy Coney Barrett’s confirmation. Gerard added that this shadow docket has been changed in a meaningful way: now only two-thirds of conservative majority needs to agree to hear a case, the median justice has shifted to the right and the conservative majority broadly enjoys more flexibility.
The court also touched on important issues regarding religious rights, Greenhouse and Gerard explained. The court overturned a variety of religious gathering restrictions during the pandemic on the grounds that public venues are less restricted. A recent decision which exemplifies this is Tandon v. Newsom, where the court ruled 5-4 in favor of allowing religious activities in private homes without pandemic restrictions. Such a decision, Gerard said, weakened a former landmark decision in Employment Division v. Smith that upheld health concern restrictions even in cases of religious ritual.
According to Gerard, the court seems to value making it clear to the public that it is not a partisan institution and is not “another political body in government.” He pointed to the vast amount of court press speeches and book tours from justices such as Barrett and Breyers.
Regardless, Gerard said the court does not currently represent mainstream public opinion.
“I think we’re in a situation where it’s going to be very difficult for the liberal sitters on the court, especially in most cases where they are the dissenters, to work back for a majority,” Gerard said. “This really does speak of the need for there to be major reform of the Supreme Court, and I’m not sure what that looks like yet.”
The United States Supreme Court is located at One First St. in Washington, D.C..
Clarification, Dec. 4: This article was edited to clarify that the court has taken an expansive view of religious rights.