WASHINGTON – Justice Stephen G. Breyer’s successor on the Supreme Court may possess a brilliant mind, infectious charm, and refreshingly liberal views. But there is no reason to think that new justice will be able to slow the court’s acceleration to the right.
Indeed, the court’s trajectory may have been accounted for in Justice Breyer’s retirement calculations, said Kate Shaw, a professor at the Benjamin N. Cardozo School of Law. “There’s a good chance,” she said, “the current on-field dynamics – both the speed and magnitude of the change coming – have had some impact on Breyer’s decision to leave right now. ”
She suggested that he may have come up with the idea that someone might as well try to get in the way of a disruptor committed to implementing, and quickly, the conservative legal movement’s wish list in vandalism cases. pregnancy, guns, race, religion and voting.
In a letter to President Biden On Thursday, Justice Breyer, 83, said he would step down at the end of the Supreme Court’s current term, in June or July, if his successor had been confirmed by then. But that free-for-freedom swap will not change the power and ambitions of the court’s six conservative majority.
Its members, all of whom are appointed by Republican presidents, seem largely uninterested in the sharp drop in court approval, harsh criticism from the judges. freedom or the possibility that Congress could add seats or change the structure of the courts. Faced with unwarranted setbacks, the conservative majority seems poised to break.
“This is a hasty court,” said Stephen I. Vladecka law professor at the University of Texas at Austin.
The shape and pace of the court’s conservative agenda has been in the spotlight over the past six months.
Most notably, the court repeatedly refused to block a Texas law that banned most abortions after six weeks. The law stands in stark contrast to Roe v. Wade, the 1973 decision establishing the constitutional right to abortion and prohibiting states from banning the procedure until the fetus is about 23 weeks alive.
Courts have also repeatedly blocked the Biden administration’s initiatives to address the coronavirus pandemic, preventing a ban on deportation and a experimental mission or vaccine for major employers. And it refused to block the lower court’s ruling asked the administration to reinstate a Trump-era immigration program that forced asylum seekers to the southwestern border to await approval from Mexico.
Although there is no division in the lower courts, the usual important criterion for Supreme Court consideration, judges have agreed to decide whether Completely replace the Role in a case from Mississippi and whether walk away by affirmative action in higher education in cases involving Harvard and the University of North Carolina. In that last case, the appellate court hasn’t even ruled.
Not surprisingly, conservative judges voted for conservative outcomes. But the rate of change, often accompanied by procedural shortcuts, is harder to explain.
The three newest judges, all appointed by President Donald J. Trump, are between the ages of 50 and 56. If they serve long as Justice Breyer, they’ll be on the court for another quarter of a century or so. They have plenty of time.
Nor is there a looming departure among other conservatives. The oldest, Justice Clarence Thomas, 73, is a decade younger than Justice Breyer, and he has been particularly involved in court work lately.
The six justices conservative majority seems built to last.
“There is perhaps some sense that these majors can be fleeting,” says Professor Shaw, “so you do as much as you can because who knows what the future holds.”
When the Roe admissions case was debated in December, three libertarian members of the court seemed disappointed if not worried at the prospect of such a stark change right away. after changing members of the court. Justice Ginsburg, a liberal icon, has been replaced by a conservative, Justice Amy Coney BarrettMr. Trump’s third appointee to court.
“Can this institution survive the stench this creates in the public perception that the Constitution and its reading are merely political acts?” Justice Sonia Sotomayor asked.
The conservative wing of the court seems unmoved. Indeed, its five most conservative members seem uninterested in a more elevated position led by Chief Justice John G. Roberts Jr. outline, who suggested that the court could uphold the Mississippi law in question, ban most abortions after 15 weeks, and leave it at that for now.
Professor Shaw said some members of the court may have been agitated by the continued lack of national opposition to Texas’ abortion laws.
“They dipped their toes in the water to end Roe in the second most populous state in the nation,” she said. “They could have drawn the conclusion that any backlash to Roe’s overestimation would be muted or short-lived and would not pose an existential threat to the courts. .”
The The report is not convincing promulgated by Mr. Biden’s committee on potential changes to court processes and structures may well have led the court’s conservative majority to believe they have nothing to fear from the court. other branches.
“When the Biden committee got back to its report, that dropped even further,” said Prof Vladeck. “This is not 1937.”
That was the year that President Franklin D. Roosevelt introduced what is called his court packing plan. It failed immediately: The number of judges remained steady at nine. But it appeared to put pressure on the court, which began to uphold progressive New Deal legislation.
Now there doesn’t seem to be any comparable pressure, Professor Vladeck said. “This is a court that is not shy, is not afraid of its shadow, and is not worried from afar about doing anything to provoke Congress,” he said.
Courts have recently been creative in using unusual procedures to produce quick results.
For example, in recent years it has done some of its most important work on what critics call its shadow framein which the court decides on urgent applications on a very rapid schedule without a brief meeting and full argument, often in a brief ruling issued late at night.
Possibly in response to criticism of that practice, the court has begun hearing arguments in important cases it has come to court such as emergency applications, including death penalty applications. , Texas abortion law, and two Biden administration programs. request or encourage vaccination against coronavirus.
The court has also begun using another procedural device to allow it to make quick decisions, agreeing to hear cases before the appellate courts issue decisions.
The “confirmation before judgment” procedure was once extremely rare, seemingly reserved for national crises such as President Richard M. Nixon’s refusal to turn over tape recordings to a special prosecutor. or President Harry S. Truman’s arrest of the steel industry.
Until early 2019, the court had not used the procedure for 14 years. Since then, Professor Vladeck foundit used it 14 times.
“This is a court that is not afraid to remove obscure procedures and obtrusive avenues of review, if that allows it to make decisions faster,” he said.
“It all ends up in the same place,” he said, “which is increasing the power of the courts.”
https://www.nytimes.com/2022/01/27/us/politics/new-justice-supreme-court.html New justice is incapable of preventing the Supreme Court from deviating from the right direction