Important term for high court – and the nation
A few years back, Virginia’s former governor, Bob McDonnell, was convicted by a jury on 11 counts of accepting bribes from a Virginia CEO in exchange for using his office to promote that businessman’s company.
The Republican lawmaker was sentenced to two years in prison. His sentence was put on hold, however, while McDonnell’s appeal was heard by the Supreme Court. The following year, the high court overturned the corruption conviction and McDonnell was a free man.
This could have been seen as an example of the court’s majority playing favorites except for one important factor: The ruling was unanimous.
When the court’s conservative and liberal flanks align, there is less reason to suspect that extra-legal considerations were brought to bear. If the merits of a case are apparent from all perspectives, and the result is a unanimous or near-unanimous decision, there is likely to be far more confidence that ruling is just.
The current Supreme Court would do well to keep this in mind.
As the court began its new session this week, the political, legal and emotional reverberations of its late June decision reversing 50 years of federal abortion rights in America have yet to diminish.
That decision, coupled with equally strident rulings from the conservative majority last term that expanded gun rights, restricted federal agencies’ ability to combat climate change and minimized the separation of church and state have contributed to plummeting public approval of, and trust in, the court.
It’s not hard to see why. Many of the rulings, particularly the 5-4 decision in Dobbs v. Jackson Women’s Health Organization that toppled Roe v. Wade, reversed precedent with what many critics saw as insufficient judicial justification.
Public backlash has been such that conservative justices including Samuel Alito and Chief Justice John Roberts have publicly pushed back against concerns that the court is sacrificing its legitimacy.
If they are truly concerned, they need to root their decisions in precedent and established law and not, as they did in Dobbs, on political views badly disguised with thin legal argument.
They’ll have plenty of opportunity. The justices have thus far this term agreed to hear cases that touch on voting rights, environmental protections and affirmative action, among other far-reaching issues.
Joining the arguments is newly minted Associate Justice Ketanji Brown Jackson, the first Black woman to sit on the bench. Her extensive experience and knowledge were evident in her questioning during oral arguments Tuesday in a case that could dismantle what little is left of the Voting Rights Act of 1965.
But while Brown Jackson’s intellect and insight are welcome additions to the court, her replacement of fellow liberal justice Stephen Breyer, who retired, does nothing to change the ideological calculus on the court.
After lurching to the right in its previous term, the court can either chart a judicial course more in line with legal precedent and constitutional guidance, or, as is more likely, it can continue to exploit its 6-3 conservative majority to ram through ideologically weighted decisions.
That would be costly — to those who wish to see voting rights expanded and state and congressional districts fairly drawn; to those who believe the nation must act aggressively to slow the effects of a warming planet; to those who support equal opportunity in the college admissions process; and, ultimately, to the standing of the court.
The court’s legitimacy, then, is in its own hands. So, too, is the direction of a nation that increasingly sees the Supreme Court not as a disinterested arbiter of legal and constitutional conflicts but as an ever more strident supporter of the conservative agenda.