Analysis: Ketanji Brown Jackson hearings to shed light on Supreme Court’s rightward trajectory


Jackson’s hearings will show her status as the first black woman appointed to the High Court. Yet the televised sessions will also put the trajectory of America’s highest court, now controlled by a conservative supermajority, at the center of national attention.

Liberals now counter that the sudden change wrought by the new judges undermines the Court’s institutional legitimacy. During the December proceedings in a dispute over the Mississippi abortion ban, Judge Sonia Sotomayor observed that state officials believed their law would be upheld because of the new court members.

“Will this institution survive the stench it creates in the public perception that the Constitution and its reading are nothing but political acts?” she asked.

The Senate Judiciary Committee hearings may provide a first glimpse of how Jackson, 51, would see her fit into the court’s diminished liberal wing and how she could work with colleagues on both sides of the ideological divide.

President Joe Biden has chosen Jackson to succeed outgoing Justice Stephen Breyer. She is a former federal public defender who served in lower US courts for nearly a decade. The Harvard law graduate also served early in her career as a lawyer at Breyer.

Not since 2010, and the nomination of Elena Kagan, a Democratic candidate has been before the Senate Judiciary Committee. (In 2016, President Barack Obama selected Merrick Garland for a vacancy created by the death of Justice Antonin Scalia, but the Republican-controlled Senate declined to hold hearings or act on the nomination.)

Kagan joined a 5-4, conservative-liberal bench, and in the 12 years since, the push to the right has only deepened, on abortion, religious freedom and the right to vote. . The 2013 decision Shelby County v. Holder particularly defined the court under Chief Justice John Roberts. He eliminated a section of the Voting Rights Act of 1965 that required states and localities with a history of discrimination to seek Justice Department approval before changing election rules.

This decision and others, including those that allow extreme partisan gerrymanders and big campaign spending, have lowered the guardrails of democracy. At the same time, states have increasingly passed regulations for ballots, and federal legislation to protect the right to vote has stalled in Congress.

Last month, when judges summarily reinstated an Alabama congressional card that a lower court found had diluted black voting power in the state, Kagan lamented yet another violation of the rights law. voting, “a law that this Court once knew to underpin all American democracy.”

A new type of republican control

Republicans dominated the Supreme Court for decades simply because of who held the White House and when vacancies occurred on the bench. Since 1969, when Chief Justice Earl Warren’s liberal term ended, 19 new justices have been appointed, 15 of them by Republican presidents, four by Democrats.

But Republican appointees were varied enough that their political and ideological identities didn’t always align, as with liberal GOP appointees Harry Blackmun, John Paul Stevens and David Souter. (Chief Justice Warren himself was appointed by Republican President Dwight Eisenhower.)

Such variation has evaporated, overtaken by the diligent ideological filtering that former President Donald Trump and his recent GOP predecessors have conducted with the help of the Federalist Society and outside advocates.

Democrats like Biden have sought out liberal jurists, while simultaneously seeking diversity. Jackson would be the first black woman on the Supreme Court in its 233-year history.

President Barack Obama appointed the first Hispanic judge, Sotomayor, in 2009, and Lyndon Johnson appointed the first African American, Thurgood Marshall, in 1967. Republican Ronald Reagan appointed the first female judge, Sandra Day O’Connor, in 1981.

Areas of Biggest Change

The suspension of the right to abortion by the new majority was one of the most surprising developments. Last September, the court refused to block a Texas law that bars abortions at around six weeks, before most women know they are pregnant.

The law defies Roe v. Wade’s 1973 which legalized abortion nationwide and prohibited the government from placing an undue burden on women seeking to terminate a pregnancy before the fetus was viable, at around 23 weeks.

Abortion clinics in Texas, as well as the US Department of Justice, petitioned the Supreme Court to block the law, without success. (The Texas Supreme Court this month dismissed a related challenge, and pregnant women in Texas have traveled to neighboring states for medical treatment.)
Separate from the Texas case, the Supreme Court is currently evaluating the constitutionality of Mississippi’s 15-week abortion ban. State officials have asked judges to use the case to completely overturn Roe v. Wade.

Other Republican-led states took a page from Mississippi. The Florida legislature earlier this month passed a 15-week ban. In response, Biden tweeted, “My administration will not tolerate the continued erosion of women’s constitutional rights.”

The majority of the Supreme Court will have the final say on whether the right to abortion remains, as the court found in 1973, grounded in the 14th Amendment guarantee of freedom.

Religion necessarily colors disputes over reproductive rights, and it has become a dominant theme at the transformed court. Some judges have complained that religious freedoms are under siege. In a 2020 speech to the Federalist Society, Judge Samuel Alito used the Covid-19 rules, including capacity limits for worship services, as an example.

“The pandemic has brought about previously unimaginable restrictions on individual liberty,” he said.

Yet the conservative majority has sided with religious groups that challenge Covid-19 restrictions and, more broadly, exempted religious believers from a myriad of government regulations. In 2020, he sided with the Trump administration as the administration bolstered the ability of private employers to opt out of Obamacare birth control coverage in employee insurance plans based on religious or moral objections.

Racial dimensions in new cases

The nation’s first black female judge would join a bench expected to immediately delve into new racial dilemmas. The judges said they would revisit previous rulings allowing colleges and universities to consider applicants’ race as one of several criteria for achieving campus diversity.

A group called Students for Fair Admissions is challenging racial affirmative action policies at Harvard and the University of North Carolina. These cases will be heard in the 2022-23 session which begins in October.

Even before the Supreme Court’s conservative supermajority was clinched by Trump appointees, the justices had rejected some racial appeals, including plans for voluntary integration into public schools. Roberts wrote in this 2007 case, rejecting plans that considered student race in school assignments: “The way to end discrimination based on race is to stop discriminating based on race. “

But the court (due to the dissent of the Chief Justice) had narrowly upheld the college’s affirmative action. Such practices seem ripe for a reversal now, with the 2018 addition of Brett Kavanaugh for retired Justice Anthony Kennedy and with Barrett for Ginsburg. Kennedy and Ginsburg had previously voted to authorize affirmative action.

The new majority is also expected to continue to scale back the 1965 Voting Rights Act, with the redistricting controversy already accepted for the 2022-23 session. (In 2021, the court dismissed voting rights concerns and upheld Arizona measures that required ballots cast by people in the wrong neighborhood to be thrown out entirely and separately criminalized collection by third-party mail-in ballots, for example, from residents of a nursing home.)

In the Alabama redistricting dispute added to the judges’ upcoming schedule, a three-judge special panel said the state should have created a majority-black second district, based on the black population and its geographic compactness.

The lower federal panel said of the disputed map (which the Supreme Court reinstated): “Black voters have fewer opportunities than other Alabamians to elect their chosen congressional candidates.”

A separate development of the High Court could affect future federal elections, including presidential elections. As justices earlier this month dismissed Republican challenges to Congressional maps in North Carolina and Pennsylvania, four conservatives expressed interest in a theory that would give state legislatures full control over how their federal elections go. , without any review by their own state and state courts. constitutions.

This controversial doctrine, pressed by Trump’s lawyers in 2020, could have upset the results of the last presidential election and could affect what happens in 2024.

“We will have to resolve this matter sooner or later,” Alito wrote on March 7, disagreeing with a court order refusing to intervene in the North Carolina case, “and the sooner we do, the better. “.

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