The Economist May 7th 2022 BriefingAmerica’s Supreme Court 21Donald Trump went on to fill the seat when
he became president almost a year later,
and then to appoint two more justices,
making him the first president since Ron
ald Reagan to name three in one term.
Mr Trump’s third pick upended a 50
year balancing act. Since the 1970s a series
of swing justices had kept the Supreme
Court from tilting too far from the political
centre. Although all of them had been ap
pointed by Republican presidents, each
one acted as a pivot, with four liberal jus
tices to the left and four conservatives to
the right. In 2020, however, with the death
of Justice Ruth Bader Ginsburg and her
swift replacement by Amy Coney Barrett,
the court’s equilibrium vanished.
There are now six solidly conservative
justices, all appointed by Republican presi
dents, and only three liberals, all seated by
Democrats. Chief Justice Roberts, the last
median jurist of the fivedecade balancing
act, can no longer curb the conservative
majority. The threatened reversal of Roe, in
other words, may portend a string of highly
charged, polarising rulings.
There is no quick way for Democrats to
remedy this, since the constitution allows
justices to serve “during good behaviour”,
meaning as long as they like, provided they
are not impeached. Nearly half die in of
fice. The oldest of the justices appointed by
Mr Trump is just 57; all three could easily
remain in robes for another 30 years.
But that tight grip may come at the cost
of the Supreme Court’s reputation. The
Roberts court has moved the law steadily
to the right on race, voting rights, cam
paign finance, religious liberty, labour un
ions and the right to bear arms. When he
dissented from a ruling in 2007 that halted
efforts to ensure public schools were ra
cially mixed, Justice Stephen Breyer la
mented the ground shifting beneath his
feet: “It’s not often in the law that so few
have so quickly changed so much.”
When Justice Breyer delivered those
words, the Supreme Court enjoyed the ap
proval of 60% of Americans. Fifteen years
on, that figure has fallen to about 40%. The
explosive cases currently before the court
are likely to drag it down further. The jus
tices are weighing a challenge to laws in
New York that make it difficult to carry
guns outside the home. A case regarding
the regulation of power plants under the
Clean Air Act gives them an opportunity to
hamstring federal agencies. And two cases
could begin to demolish the wall between
church and state: a publicschool football
coach’s plea to lead student athletes in
prayer and a challenge from parents in
Maine who say their state’s tuitionassis
tance programme must include money for
religious schooling.
The most contentious of all is Dobbs v
Jackson Women’s Health Organisation, the
case that could see Roe v Wadeoverturned.
The government of the state of Mississippi
had at first asked the justices to uphold a
ban on abortions more than 15 weeks into a
pregnancy, even though prior rulings had
stated that abortion should be legal at least
until the fetus is able to survive outside the
womb (about 24 weeks). But once Justice
Barrett joined the court, the state was em
boldened to sharpen its request. The con
stitution does not protect a right to abor
tion at all, Mississippi’s lawyers told the
justices: Roewas “egregiously wrong” and
should be overruled.
That is not what most Americans think.
By roughly 2to1, they oppose letting
states ban abortion outright, according to
pollsters. Last year fully 80% told Gallup, a
polling firm, that abortion should be legal
in some or all circumstances; only 19%
wanted it to be completely banned. These
views have changed little since the 1970s. A gavelling storm
Overturning Roe would also involve de
parting from a welltrodden precedent—
something the court does relatively sel
dom. In its hearings on Dobbs, Justice So
nia Sotomayor predicted that scrapping
Roe would bring it into disrepute. “Will
this institution”, she asked, “survive the
stench that this creates in the public per
ception that the constitution and its read
ing are just political acts?”
In April Justice Elena Kagan posed simi
lar questions in a case concerning the re
quirement that police inform those they
arrest of their rights. She noted that years
ago Chief Justice William Rehnquist, while
no fan of the ruling that gave rise to the re
quirement, nonetheless saw it as deeply
ingrained in the justice system and “cen
tral to people’s understanding of the law”.
For him, she continued, if the court “over
turned it or undermined it or denigrated
it”, the result would be “a kind of unsettling
effect not only on people’s understandingof the criminal justice system” but of the
“court itself” and its “legitimacy”.
Chief Justice Roberts is an institution
alist who tends to honour stare decisis, the
idea that the court should normally “let
stand the decision” made in previous rul
ings. In 2020 he joined the court’s liberal
wing in striking down onerous regulations
on abortion clinics. Although he disagreed
with the precedent the case was based on,
he wrote, without “special circumstances”,
stare decisisrequires the justices to abide
by their precedents. Justice Clarence
Thomas, by contrast, has argued that,
when a previous ruling is “demonstrably
erroneous”, the court “should correct the
error”. The leaked opinion poohpoohs fac
tors that might typically weigh in a prece
dent’s favour, including its age, how practi
cal a standard it sets and the extent to
which Americans have come to rely on it.
Reversing Roe would also amplify char
ges of partisanship, which the justices dis
like, whatever their devotion to precedent.
Last year, at a centre named for Mr McCon
nell, Justice Barrett insisted that she and
her fellow justices were not “a bunch of
partisan hacks”. In April, at the Reagan Li
brary, she argued that people would not see
justices as politicians in robes if they
would only “read the opinions”.
Yet the court is taking more decisions
without laying out its reasoning, another
habit that has elicited complaints from the
left. Two days after Justice Barrett’s appear
ance, for instance, it revived a Trumpad
ministration rule that had limited states’
power to protect rivers from pollution un
der the Clean Water Act, in a 54 decision
released without any written opinion.
What is more, Louisiana v American Rivers
had arrived at the court on its emergency
or “shadow” docket—a shortcut supposed
ly reserved for urgent matters.
The shadow docket has become a back
door through which growing numbers of
important decisions are slipped with lim
ited airing and little or no explanation. Its
expansion reflects in part the Trump ad
ministration’s filing of 41 emergency appli
cations in four years, compared with a total
of just eight during the previous four presi
dential terms. But the justices have also
been more indulgent of petitions of du
bious urgency, if inconsistently so. Since
their current annual session began in Oc
tober, the justices have taken up 13 emer
gency cases on subjects as fraught as elec
toral redistricting and vaccine mandates.
Since Justice Barrett joined the bench,
Chief Justice Roberts has publicly joined
the court’s three liberals in dissent seven
times in shadowdocket orders. But Ameri-
can Riverswas notable: it marked the first
time he signed one of the liberal justices’
dissenting opinions and joined in criti
cism of the court’s tendency to step into le
gal disputes prematurely. In her dissent,