“So if they think you are anti-abortion or something personally, they think that’s the way you always will come out,” the 73-year-old Supreme Court justice said. “They think you become like a politician. That’s a problem. You’re going to jeopardize any faith in the legal institutions.”
Days earlier, his colleague Justice Amy Coney Barrett was more blunt:
“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” she told a forum in Kentucky hosted by Senate Minority Leader Mitch McConnell, R-Ky.
Amid a hyper-partisan environment, the case for judicial independence may fall on skeptical ears, as public confidence in ability of the nine-member bench to rise above politics may be eroding.
Supreme Court Associate Justice Clarence Thomas attends the ceremonial swearing-in ceremony for Amy Coney Barrett to be the U.S. Supreme Court Associate Justice on the South Lawn of the White House October 26, 2020 in Washington, DC. Thomas asked the first questions of the Supreme Court’s new term Monday. (Photo by Tasos Katopodis/Getty Images)
(Photo by Tasos Katopodis/Getty Images)
Those off-the-bench remarks by the justices come as the Supreme Court kicks off its new term this week, with arguably its most contentious docket in decades – including hot-button issues like abortion, gun rights and religious liberty – that will test the 6-3 conservative majority’s judicial muscle.
The justices met Monday with a return to the courtroom for oral arguments for the first time since February 2020, when the building was closed because of the pandemic.
Barrett heard in-person oral arguments for the first time since she was confirmed last fall. Justice Brett Kavanaugh phoned in his oral argument appearance due to testing positive for COVID-19. And Thomas kicked things off with the first questions of the term, by grilling the attorney for Mississippi in a water rights case. It was a clear sign he doesn’t plan to return to his pre-pandemic silence on the bench.
“It is Justice Thomas’ moment as the intellectual leader of the court and thus fitting to hear him ask the first question of the new term,” Judicial Crisis Network President Carrie Severino told Fox News.
“Abortion, gun rights and affirmative action would be monumental. That said, there, in those cases, particularly in the abortion case and in the gun case, there are ways they could decide the more broadly or more narrowly,” Paul Smith, a longtime appellate attorney and law professor at Georgetown University, said. “So part of the blockbuster nature of the term will depend on whether they really go very far and say, overrule Roe v. Wade, or simply narrow it in the abortion case.”
Abortion rights demonstrators march outside of Supreme Court Justice Brett Kavanaugh’s home in Chevy Chase, Md. Monday Sept. 13, 2021, after a high-profile decision earlier this month in which the court by 5-4 vote declined to step in to stop a Texas law banning most abortions from going into effect, prompting outrage from abortion rights groups and President Joe Biden. (AP Photo/Jose Luis Magana)
Among the issues already scheduled to be heard this fall:
- Gun Rights: A challenge to a restrictive New York state permit law – similar to seven other states – requiring most applicants to demonstrate “proper cause” to receive licenses for a concealed handgun in public. The justices in 2008 said Americans have a Second Amendment right to keep a handgun in the home for self-defense. The case comes as President Biden has issued separate executive orders addressing what he labeled an “epidemic and an international embarrassment” of U.S. gun violence.
- Religion and School Choice: Whether a Maine program that blocks families with no nearby local public schools from receiving tuition assistance to send their children to religious-based schools violates the First Amendment.
- Terrorism: Separate appeals over the death sentence given to one of the 2013 Boston bombers, and a Guantanamo prisoner questions his continued detention without charges. Biden is facing political pressure on both fronts: In July, he approved a moratorium on federal executions, but is still pursuing Dzhokhar Tsarnaev’s death sentence. The president also is currently deciding whether to close the Guantanamo prison, around the 20th anniversary of the 9/11 terror attacks.
- And the blockbuster case of the term: Abortion access, a challenge to a Mississippi law that would ban the procedure after about 15 weeks of pregnancy. The state is boldly asking the court to overturn its 1973 Roe v. Wade precedent, where abortions are legal nationwide until about the 24th week – the point of viability where the fetus can survive outside the womb. That appeal will be argued Dec. 1, with a live audio stream available to the public.
The Roberts Court, April 23, 2021. Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor. Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett. Kavanaugh was absent at the first day of the 2021-2022 term due to a case of COVID-19. (Photograph by Fred Schilling, Collection of the Supreme Court of the United States)
(Supreme Court of the United States)
“A [court] ruling is going to have a major impact on American society, whatever happens,” Severino said. “Frankly if they try to rule down the middle, you’re going to have outrage from the left, and serious concerns from the right” about the conservative majority’s commitment to restricting abortion access.
More abortion challenges
A Fox News poll out last week shows a large majority of Americans, 65%, favors keeping Roe as the law of the land. That includes, for the first time in our survey, a majority of Republicans. Just 28% want the ruling overturned.
But there is an even split – 49% each – on whether abortion should be legal.
More than 90% of abortions take place in the first 13 weeks of pregnancy, according to the Centers for Disease Control and Prevention, but a separate, even more restrictive Texas law would prevent most abortions after six weeks, before many women know they are pregnant.
The high court recently allowed the Texas statute to go into effect for now, while its constitutionality is being challenged in the lower courts.
The Texas law is unique in that the restriction can only be enforced through civil lawsuits.
“Private citizens enforce the law. The [state] government has no role in enforcing it,” said Josh Blackman, a constitutional law professor at South Texas College of Law Houston. “So basically every Texas citizen is now a private attorney general.”
The Supreme Court’s 5-4 order was the most restrictive right to an abortion in decades, even though it was temporary, and several justices raised strong concerns about the law’s constitutionality.
Out of the shadows
And it came under the court’s so-called “shadow docket,” time-sensitive emergency decisions coming outside the court’s normal review procedures.
Such cases have traditionally been limited in scope – orders on appeals like requests for a temporary stay of execution – but in a two-week period this summer, the high court separately ruled on the Texas abortion law; a COVID-related federal moratorium on renter evictions; and a restrictive Trump-era immigration asylum policy.
In this Nov. 6, 2020, file photo, the Supreme Court is seen at sundown in Washington. The justices heard arguments inside the courtroom for the first time in more than a year-and-a-half of Monday. (AP Photo/J. Scott Applewhite, File)
Those three orders – with right-leaning justices prevailing – would have a sweeping impact, even though they are decided in just hours or days and bypass the typical analysis of an issue through exhaustive written briefs, oral arguments and a signed opinion.
“Last year, the combination of the pandemic and the election meant that there were just tons of high visibility applications for emergency stays of lower court decisions – in cases about churches not being allowed to meet in person, and about changes to voting rules” in an election year, said law professor Smith. “And the court was very aggressive about [temporarily] policing a lot of the lower court decisions and decisions of executive officials about these issues.”
Critics call it a back-door process being abused by the justices to achieve a desired outcome without full legal and public debate. Some legal scholars blame the Trump administration for bypassing the lower courts and going directly to the nation’s top court on issues like immigration reform. The Trump Justice Department also filed more than 40 requests for emergency relief under the “shadow docket,” compared to just eight by his two immediate predecessors.
This comes as the high court could add other controversial issues to its merits docket in coming months, including immigration, religious rights of death row inmates, and affirmative action in college admissions. A coalition of Asian American students say they are unfairly being discriminated against, with schools holding them to a higher admission standard compared with Latino and Black students.
“The court was thought to be the least dangerous branch and we may have become the most dangerous,” Thomas said in his recent remarks, when rebuking fellow judges who he said make decisions based on personal feelings or religious beliefs. “And I think that’s problematic.” He did not cite any specific examples.
More Americans now have a negative view of the job the Supreme Court is doing. Just 42% approve and 45% disapprove, according to a new Monmouth University (NJ) survey. Just five years ago, the numbers were 49% approve, 33% disapprove.
“I think there is a sustained effort to delegitimize the court, that has gotten some traction on the left,” said Roman Martinez, a former Justice Department lawyer who clerked for Chief Justice John Roberts and then-Judge Brett Kavanaugh. “As a result of that, you see the poll numbers moving. It’s real, and the court, to its credit, is defending itself in a way that spans what some see as the ideological divide.”
It comes as Biden’s commission on the Supreme Court in coming weeks is set to issue its report – but not recommendations – on suggested reforms such as expanding the number of justices and imposing term limits. Some commission members and witnesses have complained the high court is out of touch and out of control.
As a sign of how far things have gone, abortion rights protesters marched to Kavanaugh’s home, angry at his vote in the Texas case. It prompted widespread bipartisan condemnation of the intimidation tactics.
One justice particularly sensitive to image is Stephen Breyer, 83, who recently spoke with Fox News to discuss his new book, “The Authority of the Court and the Peril of Politics.”
He said the court’s power is fed by public acceptance, which helps maintain its authority.
The oldest justice resisted calls from the left to retire over the summer and give Biden a legacy-making nomination. He told “Fox News Sunday” anchor Chris Wallace that he tries to ignore such political pressure, and instead promote the idea of a fair judiciary.
“I’m there for everybody. I’m not just there for the Democrats. I’m not just there for the Republicans. And I’m not just there because the president was a Democrat who appointed me,” Breyer said. “It’s a very great privilege to be in that job. And part of it is to remember that you’re there for everyone. They won’t like what you say half the time – or more. But you’re still there for them.”
Fox News’ Tyler Olson contributed to this report.
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