The U.S. Supreme Court term in review from Nina Totenberg
JUANA SUMMERS, HOST:
The Supreme Court is now in recess till October, but it's probably safe to say that the nation will remain focused on what we saw this past term - major victories for conservative agendas on abortion, guns, immigration, religious freedom and environmental regulations. It's led to the most conservative Supreme Court in 90 years. Let's talk about that and the issues the court might tackle next term. With me now are Nina Totenberg, NPR's legal affairs correspondent, Jamal Greene, a constitutional law expert and professor at Columbia University Law, and Tom Goldstein, a Supreme Court litigation expert and the publisher of SCOTUSblog. Good to have you all with us today.
NINA TOTENBERG, BYLINE: Nice to be here.
JAMAL GREENE: Great to be here.
TOM GOLDSTEIN: Good to be here.
SUMMERS: Nina, let's start with you. Today you wrote that there is no way to overstate what the Supreme Court did this term. Can you just start by helping us understand the degree to which the court's conservative shift really came to bear?
TOTENBERG: Look - the data really tell the story. The court produced more conservative decisions this term than at any time since 1931, according to statistics compiled by Professors Lee Epstein of Washington University in St. Louis and Kevin Quinn of the University of Michigan. The sweeping nature of the decisions, the sheer number of them amounted to sort of a dream fulfilled for hard-line conservatives and a nightmare for liberals and moderates. So in overturning Roe, the court erased a half-century of court precedents and eliminated the right to abortion. Just weeks after the shootings in Uvalde, Texas, the court issued a broadly worded opinion, making it just much more difficult to regulate guns. In a major environmental case, the court curbed the EPA's ability to deal with climate change. And in doing that, it signaled that other government assertions of regulatory power in the name of health and safety could be on the chopping block, too. And I think I'll end there for the moment.
SUMMERS: Nina, you also spoke to some scholars who call this the YOLO court, as in you only live once, because this court has been so aggressive. Jamal and Tom, for each of you, is that assertion in line with your biggest takeaways for each of you from the term?
GOLDSTEIN: I think the YOLO description is pretty accurate. On the court, you never know how long you're going to have the advantage that you have. And I think you see a court that's aware of that, and they've reached out to decide some cases that they didn't necessarily have to decide. You really see a court that is finding its sea legs, so to speak, given how reliable the kind of ideological advantage is.
GREENE: Yeah. Nina said that this term was a nightmare for progressives, and that's just not right because you wake up from a nightmare, and it's over at some point. And the problem for the American left is that they are stuck with this one for the next quarter century. The difference between now and a century ago, when there were another set of conservative decisions, to be sure, is that the Supreme Court is so much more involved in American life right now than it was then.
SUMMERS: You know, as I think about the high-profile decisions that we saw this term, a number of them with the ability to reshape society, Nina, I wonder, do you have a sense of how all of this is impacting public trust in the court?
TOTENBERG: I mean, the numbers vary somewhat. But a Gallup poll recently found public approval of the court at only 25%. It used to be in the high 40s and over 50%, and it was the one branch of government that people relatively trusted and thought worked well. And that appears not to be the case, at least right now.
SUMMERS: And then, Tom or Jamal, for either of you, the court had historically been seen as the most apolitical branch of government. To either of your mind, is this iteration of the Supreme Court more political than we've seen in the past?
GOLDSTEIN: I think the court has always been political. I think what you're seeing as different now is, for one thing, the court is involved in many more issues and a wider range of issues than it has been. The court historically has been pretty much in the middle of the political spectrum, and that's been kind of part of the source of its legitimacy over time.
GREENE: One other thing I wanted to mention is that the court is increasingly taking a number of cases and issuing very conservative decisions when it comes to the leverage of democracy itself - the Voting Rights Act, campaign finance law. And so there are going to be a series of rulings that have enormous consequences throughout the country in a way that are very likely to empower Republican and conservative legislators and governors. And the Supreme Court's fingerprints on some of it won't even be on them.
SUMMERS: We have heard a number of calls from the left this year for perhaps court-packing, the idea of expanding the Supreme Court, perhaps the idea of impeaching some justices. To any of you, how realistic do you think either of those possibilities could be right now?
TOTENBERG: At the moment, I would say that's very far away. Of course, we've seen American society and political directions change very dramatically in a relatively short time of late, so one can never say.
GOLDSTEIN: Well, Democrats control the presidency, the Senate and the House of Representatives, and so they could, I guess, pass a law that changes the number of justices on the Supreme Court. But we just had a test case. The Supreme Court overruled Roe v. Wade. I mean, that is as dramatic a conservative thing that you can do. And there wasn't some big uprising in the country to really get Democratic legislators to vote for that kind of change. And so I think it would be very, very surprising to see something like that.
SUMMERS: Let's look ahead now to the next term. Nina, I'll start with you. What are the biggest cases to watch? And do you have any indication, on some of those cases, what the court might decide?
TOTENBERG: Well, they've already agreed to revisit the question of affirmative action in higher education, but an extension of that, of course, is affirmative action in employment. And this is a court that's been very hostile to the notion of any racial preferences in either sphere. And I would expect them to reverse, you know, some 40 years or 50 years of precedents.
GREENE: So there's a case next term, the upshot of which would be that very conservative state legislatures, many of which have significant numbers of legislators who, for example, are election deniers about the last presidential election, to make decisions about who the state has elected as the president. And that could radically reshape American democracy because you do get people elected to be state legislatures that are extremely aggressively conservative.
GOLDSTEIN: And there is a fairly significant gay rights case out of Colorado involving some tension between Colorado's anti-discrimination laws and a claim of religious freedom. So this is going to be another kind of big culture war kind of case and maybe a test case for taking the court's temperature on gay rights in the wake of the overturning of Roe v. Wade. There's a lot of concern among many on the left and the gays who are not on the left about the possibility that the court will revisit some of its earlier precedents protecting same-sex marriage, protecting the right to same-sex intimacy.
SUMMERS: That's NPR's Nina Totenberg, Columbia Law School's Jamal Greene and SCOTUSblog Tom Goldstein. Thanks, you all.
TOTENBERG: Thank you.
GREENE: Thanks so much.
GOLDSTEIN: Thanks. Good to be here.
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