The United States Supreme Court concluded their 2021-22 session with a tranche of rulings that can fundamentally alter American life — from the steps of the Supreme Court building to the downtown streets of San Luis Obispo, where students and community members have protested in recent months.
The court’s decision to overturn the landmark abortion rights case, Roe v. Wade, among other recent rulings on environmental regulations and voting rights, have all been followed by an unprecedented low point in public confidence in the court’s legitimacy, according to a Gallup poll published in June.
In an interview with Mustang News, Cal Poly political science professor Michael Latner reflected on the implications of the recent rulings and what precedent they set for the future of the nation’s political climate.
Most notably, in Dobbs v. Jackson Women’s Health Organization, the court found the previous Roe v. Wade decision to be unconstitutional.
Latner said that crucial to this ruling is the court’s claim that they are returning the issue of legalized abortion to the people to decide.
“Congress [or the state legislatures] can always change the law,” Latner said.
Pro-choice advocates argue that the court is criminalizing abortion by putting it to the state legislatures. According to the New York Times’ tracking of abortion laws, at least 12 states have banned abortion nearly entirely, and two other states banned abortion around six weeks of pregnancy — often before a pregnancy is known.
A poll conducted by the Marist Institute for Public Opinion shows that a majority of voters do not support criminalizing abortion.
“You’re seeing nearly 50 years of precedent being thrown out,” Latner said.
After the Supreme Court’s opinion draft to overturn Roe v. Wade was first leaked in May, hundreds of San Luis Obispo students and locals took to the streets to protest for abortion and reproductive rights.
This sentiment has been echoed by California Gov. Gavin Newsom, who dedicated an executive order and a portion of the state budget to securing reproductive services to people in the state.
The Supreme Court’s decision to leave it up to the states has extended beyond Roe v. Wade. Latner said this reasoning is also being applied to election law cases.
The court heard a number of cases regarding voting rights and election law in its previous judicial session. In one case out of Alabama, Merrill v. Milligan, the Republican legislature redrew congressional districts in a process known as gerrymandering to put the majority of Alabama’s Black population into one congressional district. According to the US Census, Black people account for a quarter of Alabama’s population, yet the new maps would place them into one of seven congressional districts.
Latner predicts that the framework could be set for the Supreme Court “to effectively overturn the Voting Rights Act of 1965.” Merrill v. Milligan, in addition to two other cases that will be heard in the next Supreme Court session beginning in October, would all be instrumental in making Latner’s prediction true.
One of those cases is Robinson v. Ardoin, a similar racial gerrymandering case that would, according to Latner, nullify section two of the Voting Rights Act of 1965. Section two “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership.”
Latner said that another case, Moore v. Harper, would endorse the independent legislature theory, This theory argues that state legislatures, not state supreme courts, should have more authority over election laws. The Supreme Court’s ruling on this case would help determine to what extent a state’s supreme court can dictate election regulations for senators and congress members based on its interpretation of the state constitution.
In environmental regulatory law, the Supreme Court struck down the Chevron doctrine in the case West Virginia v. EPA. The Chevron doctrine is a court precedent stating that, in the event of a conflict between legislatures and a regulatory agency, the Environmental Protection Agency in this instance, then deference would be given to the regulatory agency when interpreting legislation.
The Chevron doctrine comes out of the case Chevron v. Natural Resources Defense Council Inc. where Chevron argued that the 1963 Clean Air Act did not explicitly outline what defines a “source” of pollution.
The Court ruled in that case that instead, it was not the job of Congress to decide specific regulations but rather the expert or regulatory agency’s, in this case, the EPA. In the absence of the Chevron doctrine, deference to the EPA will not be given when interpreting legislation that does not specifically define limits for clean air standards or any other environmental regulation within the legislation itself.
The search for solutions to Supreme Court legitimacy problem
In reaction to these rulings, as well as developments in the Jan. 6 insurrection hearings, some voters have called for accountability for members of the Supreme Court.
Supreme Court Justice Clarence Thomas refused to recuse himself from cases involving the Jan. 6 insurrection despite his wife, Ginni Thomas, being in contact with Mark Meadows, the White House Chief of Staff, during the insurrection.
Some voters have begun to question whether impeachment of a justice would be possible. However, it would be highly unlikely that Democrats would be able to impeach a justice under the current rules since it requires a two-thirds majority vote. Senate procedures could be amended to drop the filibuster requirement, which would then only require a simple majority.
Court-packing, which would expand the court to be larger than nine justices, has also been floated. In June, White House press secretary Karine Jean-Pierre said that expanding the court is not something US President Joe Biden agrees with.
Biden did however form a bipartisan commission that created a report in 2021 assessing Supreme Court controversies, according to The Wall Street Journal*. While this commission was not asked to provide policy recommendations, its report described the arguments for and against possible solutions, including court expansion and term limits.
When the Supreme Court became more conservative amid Supreme Court Justice Ruth Bader Ginsburg’s death in 2020, Latner told Mustang News this new imbalance would likely result in justices ruling based on their own political ideology rather than showing judicial restraint, making the court a “political weapon.”
Among other options, the commission’s report addressed the option of letting the executive and legislative branches make decisions on cultural and political issues rather than the judicial branch — a move that could address the increased politicization of the Supreme Court in hopes of restoring public confidence in its legitimacy in the future.
*Cal Poly offers free digital subscriptions to The Wall Street Journal to students and professors. Gain access at https://education.wsj.com/search-students/.