Review of Justice On The Brink. Preview of conversation with Linda Greenhouse.
On September 26, 2020, Supreme Court Justice Ruth Bader Ginsberg, affectionately known in her later years as the Notorious RBG, was only eight days deceased, and not yet buried. Her final published opinion had come three months earlier, on July 8, at the conclusion of a case over religious objections to the contraceptive mandate of the Affordable Care Act, called Little Sisters of the Poor Saints v. Pennsylvania. Joined only by Justice Sonia Sotomayor, she’d dissented from the seven-judge majority ruling in favor of the sisters, writing, “Today, for the first time, the court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”
Ginsberg’s dying wish just a few weeks later had been for the nominee who’d take her seat not to be selected until after the November election. The Trump administration and Congress had instead nearly instantaneously named their choice, and on that night she was introduced to the world. Judge Amy Coney Barrett — first-in-her-class Notre Dame Law School graduate, former clerk to Antonin Scalia, mother of seven — was a devout Catholic, and well known in right-learning forums. She’d signed her name to a 2006 ad calling for the overturn of Roe v. Wade. Would the bench’s most reliable liberal judge be replaced by a woman who’d become one of the court system’s most reliably conservative?
So sets the stage for “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court,” longtime New York Times columnist and contributor Linda Greenhouse’s 2021 wrap-up of the nation’s highest court’s last 18 turbulent months.
We had a lot on our plate, and the court had a lot on its docket. The unprecedented disruptions of the COVID pandemic might have produced legal conflict enough, but throw in a head of state hell-bent on enlisting all three branches of government to stay in power, an emboldened political right fighting against the Voting Rights Act and the ACA at every turn, as well as ramping up preparations to overturn Roe v. Wade, and the court had its work cut out for it, Though out of 58 cases decided, only about half a dozen “appeared guaranteed to capture public attention.”
Documented in real time, “Justice on the Brink” serves as a scrupulous catalogue of the Court’s most recently completed session for both longtime SCOTUS-watchers and those whose attention might, for reasons I’ll soon get into, be more attuned there than it used to be. Here are a couple of key takeaways on the heartening side of the current Supreme Court equation: there is ample evidence that our judges do not, contrary to conventional wisdom, always decide according to what we perceive to be their strict ideological alignment. Take Judge Gorsuch, for instance, nominated by Trump as soon as he took office, and taking up the seat President Obama had been thwarted from giving to centrist Merrick Garland. Conservatives were counting on Gorsuch as a sure thing, yet in 2020 he issued a shocking opinion, in divergence from the usual conservative bloc, in defense of gay and transgender rights, protecting them from workplace discrimination. This struck most as totally out of left field, and many as disloyal.
On the other hand: The Supreme Court! It’s Just Like Us! Until the spring of 2021, the justices were compelled, due to COVID constraints, to conduct hearings by phone and to forego social interaction. Just as social isolation strained our non-supreme interpersonal relationships, it seemed to do the same to the Court’s. Gone, their weekly behind-closed-doors business meetings. Gone, the myriad relationship-building opportunities that can only be afforded by that sort of unmediated, in-person, informal conversation. During COVID, their often-lengthy majority and minority opinions seemed to take on added meaning. The loaded sniping back and forth between justices, vis a vis their published opinions, reminded me of school kids who aren’t speaking to one another passing notes back and forth through intermediaries.
Justice Samuel Alito, nominated by George W. Bush in 2006, writes his opinions, in Greenhouse’s analysis, with “verbal blunt force.” Maybe he caught the fury contagion that’s infected the body politic in the Trump era, and vented it through his judgments, often in response to the many religious cases the Court took up during lockdown. One particular source of his frustration was the perceived anti-religious-liberty precedent set by the 1990 case Employment Division v. Smith, in which state’s rights had trumped religious freedom. Smith makes a full consideration of related cases today impossible. After one such decision, in which Alito fumed that “Smith was wrongly decided,” he “excoriated” a six-justice majority in a 77-page dissent. “Clearly,” Greenhouse opines, “there had been a ferocious battle inside the court and, as in the Affordable Care Act case, Alito had lost and was venting his anger at his conservative colleagues in public.”
Justice Alito, a practicing Catholic, writes forcefully on issues of religious freedom. Justice Sotomayor, the first Hispanic on the court, writes forcefully on issues of race. They are the only two justices with prosecutorial experience, from which they took away very different impressions. He’d seen the system, and thought it worked pretty well. She, on the other hand, saw that “the administration of criminal justice can go wrong, sometimes disastrously so.” In the 2014 case of Schuette v. BAMN, regarding affirmative action, Sotomayor wrote a “blistering and deeply personal dissenting opinion,” stating, “The way to stop discrimination on the subject of race is to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” This was a direct rebuttal to Chief Roberts’ quote from a 2007 affirmative action case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Justice Sotomayor’s full dissent can be found here. As in the case referenced above, Sotomayor and RBG often joined forces for dissents, but once she died, Sotomayor found herself conspicuously alone.
Likely the most important race-related cases before the Supreme Court in the past year were those involving voting rights. After the 2020 election, many conservative state legislatures took up “election integrity” as a 2021 priority, making voting far more difficult for millions of voters. In the book, Greenhouse explains, “The new measures limited early voting; … imposed onerous new authentication requirements on mail-in ballots; tightened existing voter ID requirements or imposed new ones; and curbed the discretion election officials had traditionally been granted to carry out their nonpartisan duties … Many of the new measures would predictably place a disparate burden on Black and other minority voters.” Working people need to vote during non-work hours; officials reduced the hours polling places were open. Voters in more congested neighborhoods naturally need to wait longer in line than those in wealthier, less congested areas, and Georgia officials passed a law making it illegal for volunteers to hand water to people waiting in the hot sun for hours to vote.
The key section of the voting rights act that the justices considered in its 2020–21 Arizona case was Section 2, which applied to a practice of any state that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” The court seemed uninterested in the details of the case at hand, their questions were mostly hypothetical, to apply to future questions likely to be brought based on the steps being taken by Republican legislatures, and they seemed to see the question as that of equal opportunity. If everyone theoretically gets the same chance to vote, what’s the problem? This reminds me of a problem roiling public education: if every kid in the school building theoretically gets access to the same Honors and AP classes, what’s the problem? In both cases, the argument boils down to “equality” versus “equity.” In education, administrators are shifting to offer concrete assistance to historically disenfranchised students in accessing advanced coursework. In voting, officials are doing the opposite. If people of color in the South have a convenient tradition of voting in large numbers on the way home from church on Sunday, clearly it disenfranchises those voters to prohibit polls from opening on Sunday.
Justice Elena Kagan, unlike Sotomayor, tends to keep her feelings close to her chest. As Greenhouse puts it, though “impassioned dissents from Kagan were rare,” on voting rights she made an exception. “Section 2 was meant to disrupt the status quo, not to preserve it — to eradicate then-current discriminatory practices, not to set them in amber.” She referred in her opinion to Selma’s Bloody Sunday in 1965, quoted John Lewis, and asserted, “If a single statute represents the best of America, it is the Voting Rights Act.”
As today’s court winds down its 2021–22 session, all eyes will be on the question referred to in the justices’ confirmation hearings as the Cause-Which-Shall-Not-Be-Named. Abortion. With RBG’s replacement by Amy Coney Barrett, and Stephen Breyer’s replacement by the presumably ideologically-aligned Ketanji Brown Jackson, the near-future make-up of the court would seem to point clearly in the direction of overturning of Roe v. Wade. There is a pending abortion case out of Mississippi, Dobbs v. Jackson Women’s Health Organization, which the court delayed movement on for many months, until finally, in May 2021, it agreed to consider the case’s first question, that of whether or not the standing precedent of 24-week fetal viability should hold. A decision is expected in that case in the next three months. Even with a war in Europe taking up real estate in news headlines, the Supreme Court docket is likely to be sharing that space very soon.
As for the 2020–21 court docket, what’s most remarkable is not what the SCOTUS did, but where it elected not to act. The entire court refused, for instance, to do the former president’s corrupt bidding and hand the 2020 presidential election to him, to what is likely to be his everlasting fury. On March 8, 2021 the nine justices refused, without comment, to entertain Trump’s latest baseless complaint, that time challenging the validity of more than 200,000 votes in Wisconsin. In Orlando, at the CPAC convention last year, he let loose with a wide range of grievances, sharing special vitriol for the Court. As Greenhouse states in the book, Trump claimed, “‘They didn’t have the guts or courage to make the right decision.’ His reference appeared to be to all his recent losses … then, for all his self-pitying lies about the ‘rigged election,’ Trump said something about the Supreme Court that was quite likely true. ‘They didn’t want to talk about it,’ he said.”