4 Questions About The Future Of SCOTUS

And some predictions, by four experts on the Supreme Court (plus yours truly).

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The Term of the U.S. Supreme Court that just concluded could be seen in many ways as a transitional or “table setting” Term. In an interview with John Fritze of USA Today, I compared it to the first few episodes of a new television show: we’re getting to know the characters and the storylines, but it’s not the main event. As a result, we have more questions than answers about SCOTUS right now.

Last night, seeking answers to some of these questions, I tuned into “Law of the Land 2021: The Supreme Court's Year in Review,” a SCOTUS retrospective hosted by the Forum on Life, Culture & Society (FOLCS) and the 92nd Street Y. In years past, I’ve had the pleasure of attending this event in person, but this year I had to settle for Zoom.

Fortunately, the discussion was as enlightening and lively as ever. Thane Rosenbaum, the Creative Director of FOLCS, moderated a panel of four distinguished Court commentators: Joan Biskupic of CNN, Robert Barnes of The Washington Post, Dean William Treanor of Georgetown Law, and Professor Tiffany Graham of Touro Law.

The panel of course reviewed the biggest decisions of the Term, but I won’t rehash that here, since readers of Original Jurisdiction are quite familiar with them. Instead, I’ll share what the four experts had to say about four questions concerning the future of the Supreme Court, along with thoughts of my own on each issue.

1. Will Justice Breyer retire?

Treanor responded to the question with some interesting historical context. In 1942, President Franklin Delano Roosevelt had a Supreme Court opening to fill. Justice Felix Frankfurter pushed for FDR to nominate the great Judge Learned Hand of the Second Circuit, who was almost 72 at the time, but the president went instead with Judge Wiley Rutledge, who was just 48. Six years later, Justice Rutledge died — and Judge Hand went on to serve on the Second Circuit for 12 more years.

“Justice Breyer is 82,” Treanor said. “Maybe 82 is the new 72?”

Barnes noted that Justice Breyer was junior to Justice Ginsburg for almost his entire long career on the Court. He’s now finally the senior justice of the liberal wing, meaning that he has the power to assign the opinion when the liberals dissent. Presumably he likes that power — and wants a little more time to enjoy it.

“But who knows? Maybe he’ll step down tomorrow,” Barnes said, hedging a bit. “We check our phones all the time.”

Biskupic said that Justice Breyer is aware of all the pressure on him to retire, but he’ll decide on the timing of his departure on his own terms. She said that there’s no sign that he’ll step down this summer, and she thinks it’s more likely that he will retire next year, in 2022. He knows that it’s important to have a Democratic Senate when President Joe Biden picks his successor, but he thinks he’ll still be able to retire with a Democratic Senate next year.

Graham praised Justice Breyer as “great,” but said that she wishes he would give more weight to the interest in having at least three members of the Court who share views somewhat consistent with his. The Democratic majority in the Senate is razor-thin, and if something happens to just one Democratic member of the Senate, everything could be different. Graham predicted that Senator Mitch McConnell (R-Ky.), if he becomes Senate Majority Leader once again, would not hesitate to block a Biden nominee to the Court, just as he blocked then-Judge Merrick Garland.

By deciding to stay on the Court, Graham said, “The risk that Justice Breyer is running is extraordinary.”

My own prediction: Justice Breyer won’t retire until sometime next year.

2. How conservative will Justice Barrett end up being?

Rosenbaum noted that although Amy Coney Barrett, back when she was Professor Barrett, wrote critically about the Affordable Care Act (ACA) aka Obamacare, Justice Barrett joined the seven justices who rejected the latest challenge to the ACA. Does this mean that we shouldn’t pay too much attention to her pre-SCOTUS writings — and could she turn out to be less conservative than some expected?

Graham demurred, saying that we shouldn’t read too much into the latest ACA case because it was decided on procedural grounds. She suggested that Justice Barrett might vote to strike down the ACA if given a better opportunity.

“I don’t think we can disregard her convictions as expressed in the past,” Graham said, noting that Justice Barrett voted with the conservatives in various cases pitting Covid-19 public health measures against religious freedom. Before Justice Barrett replaced Justice Ginsburg, the Court upheld these measures; after Justice Barrett replaced Justice Ginsburg, the Court struck them down.

“The jury might still be out on Justice Barrett,” Graham said, “but it’s not completely out.”

Treanor noted that in the ACA challenge, not only did Justice Barrett vote with the 7-2 majority, but she declined to join the separate concurrence of Justice Thomas, who said that the Supreme Court’s two earlier decisions rejecting ACA challenges were wrongly decided. He interpreted this as a sign that she’s more of a moderate conservative, a group that includes Chief Justice Roberts and Justice Kavanaugh, as opposed to a hard-line conservative, such as Justices Thomas or Alito (and sometimes Justice Gorsuch).

Barnes cautioned that it might be too early to make assessments about Justice Barrett’s conservatism. She’s not yet 50, and she and the other conservatives have “plenty of time” to reshape the Court. They don’t need to do everything in one fell swoop; instead, they can afford to take a more gradual approach.

My own prediction: as recently noted by Adam Liptak of the New York Times, it can be tough to predict a justice’s long-term jurisprudence based on her first Term — but if I had to do it here, I’d predict that Justice Barrett will fall somewhere in the middle of the six-justice conservative wing.

3. What can we expect from the next Term of the Court, featuring blockbuster cases about abortion and gun rights?

The panelists seemed to agree that yes, the Court will tack to the right in the coming Term. But they disagreed somewhat over how far the Court might go, as well as how fast.

Barnes seemed to be on the side predicting less dramatic change. Yes, Catholic Social Services (CSS) prevailed in Fulton v. Philadelphia, the case about whether CSS could refuse to certify same-sex couples as foster parents. But he doesn’t expect the Court to revisit same-sex marriage, despite the Court’s overall tilt in favor of religious rights.

He also pointed out that the Court denied certiorari in the case of Arlene’s Flowers Inc. v. Washington, concerning whether a florist could decline to make floral arrangements for same-sex weddings. It’s the same issue the Court dodged in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), and it seems that “the Court is not ready to take this plunge.”

And what about the upcoming abortion case, Dobbs v. Jackson Women’s Health Organization? Treanor expressed the view that there are six votes on the Court for eventually overturning Roe v. Wade, but the question is whether they’d do it all at once, in a single case like Dobbs, or over time. Treanor suggested that given his incrementalist tendencies, Chief Justice Roberts probably wouldn’t want to do it all at once, leaving Justice Kavanaugh as the key vote.

Barnes noted that the Court could uphold the Mississippi law at issue in Dobbs, which would ban most abortions after 15 weeks, without overruling Roe in its entirety (i.e., without rejecting the notion that the Constitution offers some protection to a pregnant woman’s decision to have an abortion). This refusal to set forth a bright-line rule would predictably lead to more line-drawing through litigation — which the Roberts Court doesn’t mind or might even like, he observed.

As for the new Second Amendment case — New York Rifle & Pistol Association v. Corlett, concerning New York’s requirement that you need “proper cause,” i.e., a good reason, to carry a concealed firearm outside the home — the panelists seemed to think that gun rights would prevail. Biskupic said that the very fact the justices agreed to hear it suggests a confidence on the right that they can count on Justice Barrett’s vote. Prior to Justice Barrett replacing Justice Ginsburg, the Court refused to hear many gun cases, presumably because the conservatives worried about getting the vote of Chief Justice Roberts. But with a 6-3 majority, they can now afford to lose the Chief’s vote and still prevail.

Treanor said that in his view, District of Columbia v. Heller, in which the Court held that the Second Amendment protects an individual right to own a firearm (unconnected to service in a militia), was wrongly decided. But he said that if the Court applies the reasoning of Heller to the new case, the gun owners will prevail, and the cases in this area “will be even more wrongly decided.”

One thing that will be interesting to watch: the relations between the justices. As Biskupic wrote back in May, based on harsh words exchanged in opinions around that time, the Court “appears to be entering a new era of personal accusation and finger-pointing.” And she wrote these words before some of the most heated rhetoric of the Term, such as the accusations traded by Justices Alito and Kagan in Brnovich v. DNC, the controversial voting rights case that ended the Term.

My own prediction: next Term won’t be as dramatic as many think (or fear or hope). In Dobbs, the Court will uphold the Mississippi law without overruling Roe, and in New York Rifle & Pistol Association, the Court will rule in favor of the gun owners, but narrowly.

4. Should the Supreme Court be packed — er, expanded in size?

Biskupic noted that the size of the Supreme Court is set by Congress, not the Constitution. But it has been nine for a long time, Treanor said — since 1869, for more than 150 years — and changing it would raise questions about the legitimacy of the Court and the rule of law. People might wonder: is the size of the Court being changed because Congress doesn’t like its decisions?

Graham pushed back on this, emphasizing that although we might be used to it, “nine is not a magic number.” As for the legitimacy of the Court and its rulings, it’s wrapped up in other legitimacy questions concerning our democratic system of government. What about gerrymandering? What about the representativeness of the Senate? It can’t be denied that the Supreme Court is part of this story, she argued.

But at the end of the day, Graham agreed that as a predictive matter, we are unlikely to see the Court expanded in size anytime soon.

“Nine is not a presumptively legitimate number,” she said. “But I predict it will stay.”

My own prediction: not very exciting, but I’d rather be boring than wrong — the Nine will remain the Nine, for quite some time.

P.S. I was pleased by all the great comments on my last post, seeking advice for incoming law students, and so once again I’ll leave commenting open to all readers. But I still encourage anyone who is interested to sign up for a paid subscription, which you can do using the button below. Thanks!

UPDATE (7/9/2021, 7:12 p.m.): For anyone who might be interested, please feel free to watch the full discussion here. Thanks!

Thanks for reading Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at davidlat@substack.com, and you can share this post or subscribe to Original Jurisdiction using the buttons below.