Despite serving only one term in office, Donald Trump was able to appoint three Justices to the Supreme Court, giving it a six-member conservative majority. The Court refused to block the enforcement of a Texas law banning abortions after six weeks of pregnancy. It also allows anyone to sue anyone who “aided or assisted” in an abortion. The Court heard expedited arguments about the law earlier in the month, after a public outcry. The Court will later this term consider the legality and constitutionality of a Mississippi law banning abortions after 15 weeks. This case could lead to Roe v. Wade being overturned. Wade.
This week, I spoke about the Court with Linda Greenhouse, a lecturer at Yale Law School and a contributing writer for the Times, where she reported on the Court for almost thirty years. She is the author of the new book “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court,” which recounts the time between Justice Ginsburg’s death and the conclusion of the Court’s first term with Justice Barrett. We discussed Court watchers’ views on the two newest Justices, Brett Kavanaugh, and Barrett. We also discussed the interplay between the Texas-Mississippi abortion cases and calls for Justice Stephen Breyer, a liberal, to retire while Biden holds the presidency.
You write in your book that the last Supreme Court term turned out to be less of a catastrophe for liberals than was expected after Amy Coney Barrett replaced Ginsburg. You also state that this Court has been transformed. Can you combine these two things?
Amy Coney Barrett comes on. With her confirmation having broken all sorts of norms, she’s now the third Trump Justice. After she joins the Court, the Court flips on the relationship between public health and religion. That was the Thanksgiving-eve opinion in the New York COVID case. [On November 25, 2020, the Court blocked enforcement of New York State restrictions on worship services, finding that they violated the right to the free exercise of religion.] Similar restrictions were upheld by the Court when Ginsburg was present. The Court had adopted a new constitutional rule to evaluate claims of free exercise in cases where religious worship and other human activities are similarly limited by the end of the term. That was in a COVID-closures California case, Tandon v. Newsom. That was a significant transformation, in my opinion.
On the other side of your question, the Court didn’t dismantle the Affordable Care Act, it didn’t totally shut down the DACA program, and, at the end of the day, it didn’t overturn the major religion precedent that people on the conservative side are upset about, in Fulton v. City of Philadelphia, although, as I argue, the Court rendered that precedent basically irrelevant. [In that case, which concerned a Catholic foster-care agency’s right to turn away married same-sex couples, the Court ruled in favor of the agency but did not overturn the precedent set by a previous case, Employment Division v. Smith, which found that there are no exceptions for the free exercise of religion with neutral and generally applicable laws.] These things caused liberals and conservatives to let out a sigh, while conservatives grumbled, despite important opinions such as the Voting rights Act case that was decided at the end the term. This case was a blow to what little of the Voting Right Act, which was another transformation.
What do you think differentiates Barrett from the other Justices?
Well, I think she’ll be important, for one thing just from sheer math, because she is in a position to make a difference. Certainly, in her early moves, both at the end of the term, in the Philadelphia case, and ten days ago in what she wrote in the Maine vaccine case, I read her as saying to [Samuel] Alito, “Hey, guy, don’t take my vote for granted. Yes, we are both conservatives. Yes, we are both religiously conservative but my vote isn’t yours.” These two data points are significant. In her separate opinion in Philadelphia, she uses the term “nuanced”. This is not a word we’ve seen conservative Justices use very often.
Can you talk about how the Texas case has played out and what it tells us about the Court?
I think the failure to grant a stay of the implementation of the Texas law was outrageous and actually violated the Court’s norm. The Texas law prohibits abortion before fetal viability. On December 1, the Court will hear the Mississippi case [on a law], which bans abortion before fetal life. They have taken the initiative to resolve this question. They have taken the responsibility to decide that question.
I fully expected that this would happen in the Texas case. The Texas law bans abortion, which everyone agrees is unconstitutional under current law. Is the Court going to modify current law so that a law such as that is no longer unconstitutional at the end of the term? We don’t know the answer, but they let the law go into effect. Three weeks ago, they decided that substantive review should be granted, not for the right to abortion but for the vigilante aspect of the law. They should also examine whether the federal courts have the jurisdiction to decide it. I took that to mean two things: One, they have not stopped the law from being in effect. The law is still in force. But maybe they were a little embarrassed about their growing tendency to decide things off the shadow docket–that is to say, without full briefing and argument–and some little voice inside the heads of four of them said, “You know, we’re going to get tangled up in this eventually, and we really should set it for argument, so that in the light of day we can try to sort out the weird procedural mess that Texas has handed us.”
Can you talk about the shadow docket, how much it’s being used now, and what you think that says or doesn’t say?
The shadow docket is a rather recently coined term for the Court’s emergency docket, which this Court and all courts have. The Court will handle any matter that seems to require immediate judicial intervention. This is fine. It wasn’t controversial until recently. It became controversial after the Court made substantive law on the shadow Docket during the Trump years.
That came to a head in this last term with the California COVID-closure case that limited congregating in a private home to three households. Two people sued for sponsoring religious events in their homes. They claimed it violated their right of free exercise. In a Ninth Circuit ruling, a district court judge stated that there was no discrimination because you could not have more than this many people in your home for any reason. The Supreme Court majority ruled that discrimination was caused by other venues being treated better. This is where we can see the effect of what is now known as the Court’s “most favored nation approach to religion”: if religion is treated less than any other comparable activity, it is a violation for free exercise. The regulation was due to expire in a few days. Let it expire. The majority wanted this vehicle to make the law. They wouldn’t have a law if they waited for a few weeks. The shadow docket is controversial because it serves a purpose it has never served historically.