Emboldened Supreme Court majority shows it’s eager for change

WASHINGTON -- At the end of the first full Supreme Court term with Chief Justice John Roberts and Justice Samuel Alito in place, liberal Justice Stephen Breyer said he was amazed -- and not in a particularly good way -- what President George W. Bush’s nominees to the bench had accomplished.

“It is not often that so few have so quickly changed so much,” Breyer said in June 2007 as he dissented from a decision striking school integration programs in two cities.

But it was nothing like this week. With the three nominees of President Donald Trump in each majority, the Supreme Court put a conservative shine on a greater role for religion in public life, the Second Amendment’s protection of gun rights against legislatures’ concerns of violence and then the biggest of them all: the long-awaited overturning of Roe v. Wade’s guarantee of a fundamental right to abortion.

A Supreme Court conservative majority remaking the court’s jurisprudence on a number of fronts showed that it is willing to defy public opinion, demonstrations and even death threats in the boldest manner possible: declaring that decision granting a constitutional right to abortion relied on by generations of American women was “egregiously wrong from the start.”

Breyer, now at the end of his nearly 30-year career on the court, remarked on the acceleration of change at the end of a dissent Friday he wrote with his liberal colleagues.

“A new and bare majority of this Court -- acting at practically the first moment possible -- overrules Roe and Casey,” Breyer and Justices Sonia Sotomayor and Elena Kagan wrote, referring to Planned Parenthood v. Casey, the 1992 case that affirmed the right to abortion. “It converts a series of dissenting opinions expressing antipathy toward Roe and Casey into a decision greenlighting even total abortion bans.”

It removes a right nearly 50 years old and returns the issue for state legislatures to decide, and is at odds with polls that show consistent public support of Roe.


But more, the dissenting justices said, the opinion “breaches a core rule-of-law principle, designed to promote constancy in the law . . . It places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.”

[ANALYSIS: The Supreme Court rolls back a right and inflames a divided country]

There would be considerable pushback from conservatives on that front. They say exhortations about the court’s legitimacy are more like extortion: an attempt to keep the reconstituted court from overturning wrongly decided precedents or taking up issues too long avoided, such as examining the protections of the Second Amendment.

“We cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito wrote. “That is true both when we initially decide a constitutional issue and when we consider whether to overrule a prior decision.”

Alito was joined in that sentiment by Justice Clarence Thomas and the three Trump nominees -- Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Notably missing was Alito’s fellow Bush nominee, Roberts, who chided his conservative colleagues for going too far too fast.

Roberts, only the 17th chief justice in the country’s history, sees a major part of his role as defending the court against accusations that it is more political than legal, with changes in personnel more important than scholarly consideration. He prefers to move the court incrementally to the right, as he has in the court’s religion cases.

First, a small decision in 2017 that said a state could not exclude a church from a program that made playgrounds safer. Three years later, an opinion that said a Montana program that provided tax credits to donors who sponsored scholarships for private school tuition must be open to private religious schools,

And Tuesday, Roberts wrote the opinion that struck down a Maine tuition program that does not allow public funds to go to schools that include religious instruction. Religious conservatives hailed it as a great victory, while Sotomayor saw a pattern: “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.”

But the abortion issue was different for the chief justice. Early in the term, he could not persuade a single fellow conservative to join him in delaying implementation of an unprecedented Texas law that flouted the court’s ruling in Roe and stopped abortions after six weeks. His attempts at compromise in the Mississippi case fell flat; the five conservatives ready to overturn the court’s precedents ignored him.

His unease was apparent in explaining he would uphold that state’s ban on abortions after 15 weeks by erasing the court’s bright-line rule that all prohibitions on elected abortions before viability -- when the fetus could survive outside the womb -- are unconstitutional.

“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system -- regardless of how you view those cases,” Roberts wrote. “A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”

No member of the court joined his proposed solution to the most important case of his tenure. Roberts said his colleagues had failed to adhere “to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”

No member of the court joined Roberts’s proposed solution to the most important case of his tenure. Alito noted tartly: “There are serious problems with this approach, and it is revealing that nothing like it was recommended by either party.”

He added that Roberts “makes no attempt to show that this rule represents a correct interpretation of the Constitution.” While the chief justice “is moved by a desire for judicial minimalism, ‘we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.’” The quoted language is from a previous Supreme Court opinion -- written by Roberts.

If the court is righting decades of wrongs, conservatives say there is no need for the new court to go slowly.

Edward Whelan, senior fellow at the Ethics and Public Policy Center and a frequent conservative commentator on the court, said the conservative justices might have shied away from taking up cases in the past.

Conservatives were in control before the death of Justice Ruth Bader Ginsburg, but the median justice at the time was Anthony Kennedy. He generally was conservative but sided with liberals in some of the court’s most important cases. Kennedy helped write the compromise in Casey that the court majority discarded on Friday.


When Kennedy was in place, abortion restrictions such as Mississippi’s were struck by lower courts, and the Supreme Court did not intervene. The same was true, to Thomas’s consternation, of gun cases such as the one decided this week.

“When Justice Kennedy was the swing vote on the court, voting to review a bad ruling below was a very risky exercise,” Whelan said. “The existence of a more reliable conservative majority makes it much more attractive for conservative justices to provide the four votes needed to grant review.”

Liberals such as New York University law professor Melissa Murray see it differently.

“This is a court doing everything they can whenever they can,” she said.

Already the court has accepted for next term another examination of affirmative action in university admissions, something it has upheld several times in the past. It will consider whether states violate the Voting Rights Act by not striving to create congressional districts conducive to minority candidates. It will hear from a wedding website designer who doesn’t want to work with same-sex couples.

Thomas’s concurring opinion saying the court should reexamine the constitutional underpinnings of court precedents on contraceptives, same-sex marriage and gay rights provides the next path for the court, she said.

Thomas “is saying the quiet part out loud,” Murray said. “He’s issuing invitations.”