Supreme Court Term: All Rise

The Flag Staff Contributor
Supreme Court Term: All Rise
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Supreme Court Term: The Supreme Court returned to the courtroom to hear its first in-person arguments since the outset of the pandemic in March 2020. Here’s what both sides are saying. To have stories like this and more delivered directly to your inbox, be sure to sign up for our newsletter.

Top Story: Supreme Court Term

On Monday, the Supreme Court returned to the courtroom to hear its first in-person arguments since the outset of the pandemic in March 2020. It’s a busy term — one that will feature challenges to gun regulations, abortion rights, and religious rights. “The term will be the first with Justice Amy Coney Barrett present in the seat once held by Justice Ruth Bader Ginsburg,” Jess Bravin and Brent Kendall report for the Wall Street Journal. “Her death in September 2020 opened the door for Republicans, then controlling the Senate appointment process, to solidify the court’s conservative majority.” Not only that, but “The diminishing liberal presence on the court has placed a spotlight on 83-year-old Justice Stephen Breyer. The Bill Clinton appointee has been facing pressure from the left to step down, while Democrats maintain a razor-thin Senate majority that could confirm a like-minded successor.” Here’s what both sides are saying about the Supreme Court’s upcoming term.

On The Left

Left-leaning commentators hold pessimistic views about the upcoming Supreme Court term. They think the conservative majority does not bode well for abortion-related cases and gun rights.

“Supreme Court will likely kill Roe v. Wade and gun restriction laws this term” Jessica Levinson, MSNBC: “On Dec. 1, the court will hear arguments about the constitutionality of Mississippi’s law, which bans almost all abortions after 15 weeks of pregnancy. … Because fetal viability typically begins at about 24 weeks of pregnancy, there seems to be no way to honestly square Mississippi’s law banning abortions at 15 weeks of pregnancy, with the Casey standard. … [However] by agreeing to review Mississippi’s abortion law, at least four members of the court have almost certainly signaled that they’re comfortable overturning Roe and Casey. That number is likely closer to six, the same number that voted to allow Texas’ abortion law to remain in effect. … Ten months from now, when the court’s term ends, Roe and Casey will no longer be the law of the land. They will either be expressly or implicitly eviscerated. States will no longer possess the authority to restrict people’s ability to carry concealed weapons outside the home, or that authority will be severely narrowed. … If the only two cases the court heard all term were the abortion and gun control cases, we can already predict that thanks to at least five people in a country of almost 330 million, our world is about to look a lot different.”

“The Supreme Court’s crisis of legitimacy” Ruth Marcus, Washington Post Opinion: “… a court whose ideological balance is out of line with that of the country can find itself in dangerous territory … We are a closely divided country, but we have a court that is not at all closely divided — not on the cases that matter most. … So would I be lamenting if there were, instead, a 6-to-3 liberal majority? Fair question, with two quick answers. First, a court tilted too far in either direction is unhealthy. Second, on this court, even the 6-to-3 division understates the tilt: The conservatives are much further to the right than the remaining liberals are to the left. This is the most conservative court since the 1930s, and, uniquely in US history, one whose ideological blocs align precisely with the party of the president who appointed them. This systemic and entrenched disconnect between public opinion and the judicial philosophy of the court’s majority creates a problem when it comes to assuring that the court’s decisions are accepted and followed.”

“McConnell’s Supreme Court” Jeffrey Toobin, CNN Opinion: “Amy Coney Barrett … gave a speech a few weeks ago … at the University of Louisville, at … a center named in honor of Mitch McConnell, Republican minority leader in the US Senate. … A few months after Justice Neal Gorsuch was confirmed, in 2017, he delivered a similar message at the McConnell Center. … [So did] Justice Brett Kavanaugh … The three Supreme Court justices … performed these acts of deference and gratitude to McConnell [because he] engineered their confirmations despite incendiary political controversies. … Barrett and the other conservatives on the court call themselves ‘Originalists,’ which [means] they believe the words of the Constitution should be interpreted as they were understood by the 18th-century authors and ratifiers of the document. Liberal jurists, in contrast, believe in a ‘living Constitution,’ meaning its words have to be understood in the context of the time in which we are living. … ‘Originalists’ believe that the Constitution does not protect a woman’s right to choose abortion … [For example], in the middle of the night on August 31, a five-justice majority allowed a Texas law that effectively bans abortion in the state to go into effect. The five originalists on the court voted not to block the law … When the court hears a full-fledged case this year from Mississippi about a similarly restrictive abortion law, they may simply apply the coup de grace to Roe, after they mortally wounded it this summer.”

On The Right

Right-leaning commentators also acknowledge this will be a blockbuster term for the Supreme Court. They are slightly more optimistic about some of the major hearings given the 6-3 conservative majority. We include one less positive voice, however, which is that of Donald Ayer. He was a US attorney and principal deputy solicitor general in the Reagan administration and deputy attorney general in the George H.W. Bush administration.

“Mississippi abortion case is our chance to overturn Roe v. Wade” Sen Cindy Hyde-Smith, Fox News: “Mississippi is today the center of national attention as the US Supreme Court prepares to consider oral arguments on Dec. 1 for a case that could release a judicial death grip on abortion politics. … This law is rooted in the truth that a lot has changed since 1973 when the Supreme Court decided Roe v. Wade. … Technology has advanced. For instance, remarkable advances in neonatal care since the 1970s mean babies can survive when born earlier and earlier. … For another, the miracle of ultrasound technology has made visible the obvious humanity of unborn babies early in pregnancy … At the time of Roe, fetal ultrasounds could only produce hazy images and were not commonly used. Today, we also know more about the dangers of late-term abortion. It is now well established that the later in a pregnancy a woman seeks abortion, the more likely she is to face serious complications or even death. … It is long overdue for the Supreme Court to return lawmaking to legislators, who are ultimately accountable to the voters.”

“New Supreme Court Term Set to Be One for the Ages” Adam Carrington, National Review: “The Supreme Court’s docket contains cases on which tens of millions of Americans will fixate between now and the term’s conclusion next summer. Indeed, the forthcoming cases include some of the most important and divisive issues of our time: abortion, gun rights, religious liberty, and racial equality. Bathed in the center-stage spotlight will be Dobbs v. Jackson Women’s Health Organization in which the Court will consider the constitutionality of a Mississippi law banning nearly all abortions after 15 weeks. … Since Planned Parenthood v. Casey (1992), the Supreme Court has not entertained any direct challenges to its core finding that the Constitution protects a right to an abortion — that is, until now. The prospect that the Court could overturn Roe and Casey will make it the most-anticipated case in a generation. … No matter how the justices rule, one thing is for certain: This term will be one for the ages.”

“The Supreme Court Has Gone Off the Rails” Donald Ayer, New York Times Opinion: “As the court begins a new term, regrettably, its recent history suggests that it lacks a majority of justices with sufficient concern about the basic continuity and integrity of the law or the ability of government to function. The evidence has been growing quietly in recent years — and then, last summer, quite loudly, when the court decided to twiddle its thumbs while Texas enacted an abortion law that practically bans nearly all procedures while evading timely judicial review. … [Decisions like this] will also strengthen the calls for structural changes. Some proposals to overhaul the Supreme Court — like the institution of term limits and a modest expansion of the bench — would arguably be salutary. … But that is a debate best pursued on its own merits and not because an out-of-control court has lost touch with its mission and must be stopped from casting aside long-established precedents and radically altering our system of government in accord with policy preferences of individual justices.”

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According to the most recent polling from Gallup, “Americans’ opinions of the US Supreme Court have worsened, with 40%, down from 49% in July, saying they approve of the job the high court is doing,” Jeffrey Jones writes. “This represents, by two percentage points, a new low in Gallup’s trend, which dates back to 2000. … The September survey also reveals a steep decline over the past year in the percentage of Americans who express ‘a great deal’ or ‘fair amount’ of trust in the judicial branch of the federal government, from 67% in 2020 to 54% today.” Lastly, Gallup found that a “new high of 37%, up from 32% a year ago, consider the current Supreme Court ‘too conservative.'”

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Do you approve or disapprove of how the Supreme Court is doing its job? Comment below to share your thoughts.

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