Public opinion of The Supreme Court of the United States is shifting. Only 25% of Americans now have confidence in the institution. Commentators are declaring that the court is in crisis, questioning its legitimacy, and even calling for an end to SCOTUS in its current form. One of SCOTUS’ own judges, Justice Sotomayor, described the court as “restless and newly constituted” — implying that over 200 years of tradition and precedent are slipping out of focus. The debate came to a blistering head on June 24 when the court overturned Roe v. Wade, widening a rift in the nation. The nation stands divided but one thing all sides can agree on is that SCOTUS is generating more legal drama than a Judge Judy marathon. We take a close look at the cases defining the new era of SCOTUS and how the court’s decisions might impact everything from who you can marry to how you vote. Here’s what you need to know.
How did we get here?
The current court is swinging further right than it has in at least 75 years. Out of 9 justices, 6 are currently conservative. Here’s how it played out.
- Gorsuch for Scalia: When the hard-core conservative Justice Scalia passed away, President Obama still had just under a year left of his term. Republican senators kiboshed his plans to fill the vacancy on the basis that it was an election year and voters should first have a say. Trump went on to fill the vacancy when he appointed Justice Gorsuch in 2017.
- Kavanaugh for Kennedy: Trump’s second SCOTUS appointment was Justice Kavanaugh who replaced Justice Kennedy — a conservative who nonetheless sidedwith liberal judges on a number of issues, including same-sex marriage and abortion. The appointment followed a brutal confirmation hearing in which Kavanaugh was accused of sexual assault at a high school party.
- Barrett for Ginsburg: In 2020 (the year of the presidential election), staunch conservative Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg (aka The Notorious RBG), a liberal icon and women’s rights activist. It was this third Trump appointment that seemed to signpost the start of a new era for the court. Ginsburg’s dying wish was that she was not replaced until a new president was sworn in but Republican Senators failed to apply the “no new appointees in an election year” rule that had stymied Obama.
The End of Roe v. Wade
The background
In 1973, a pregnant woman with the alias Jane Roe filed a lawsuit against the state of Texas with the aim of getting abortion legalized. At the time, abortions were only legal if performed to save the mother’s life. The Supreme Court ruled in favor of Roe, basing their judgment on the “right to privacy” which is not explicitly stated in the US Constitution but has been recognized as a right since, well, 1891. The ruling did not provide an absolute right to abortion so states were free to put some regulations in place. The court also noted that there was no precedent for recognizing unborn people as legal persons. Interestingly, the number of abortions performed in the US in the years before and after the ruling was pretty much the same. Women were simply able to access the service legally.
It’s almost hard to believe, but in 1973, abortion was not a partisan issue. In fact, fourof the judges that presided over Roe v. Wade were Nixon appointees. But abortion has increasingly become a dividing line between Republicans and Democrats. Over the years, many red states have introduced laws that come close to banning abortion by making it expensive and super complicated to access. For example, before this June’s ruling, there were six US states that had only one abortion clinic and five states that banned abortion before 6 weeks (which, by the way, is before many women are even aware they’re pregnant).
Dobbs v. Jackson Women’s Health
At face value, the case concerned the constitutionality of a Mississippi law prohibiting most abortions after 15 weeks of pregnancy but after failing in the lower courts, Mississippi took the case to The Supreme Court and asked them to overturn Roe.
Despite being given a preview of the bombshell ruling in the form of a leaked draft, the world was shocked when SCOTUS rolled back the constitutional right to abortion and overturned Roe in a 5-4 split decision. The ruling leaves states to decide whether or not to allow abortion and offers up no exceptions — even for rape, incest, or cases where going ahead with the pregnancy endangers the mother’s life.
The court justified its decision by saying that the word ‘abortion’ does not appear in the Consitution. Justice Alito argued that when the 14th Amendment (which protects liberty) was ratified, the people who did so did not intend for the amendment to cover abortion.
The dissent on the other hand says sorrowfully, “After today, young women will come of age with fewer rights than their mothers and grandmothers had.” The dissenting justices argued that giving women the choice of whether or not to have a child is essential for respecting their bodily autonomy.
The impact
Following the announcement, abortion clinics across the country shut down overnight. Thirteen states had in place “trigger laws” which came into effect automatically after the ruling. Abortion is now banned or close to being banned in 60% of US states.
Thousands protested and many celebrated when the news was delivered. President Biden decried the ruling calling it an exercise in “raw political power” by “an out-of-control Supreme Court, working in conjunction with extremist elements of the Republican party.” In one extreme example of the passion surrounding this issue, an armed man was arrested near Justice Kavanaugh’s home. He had planned to kill the judge and then himself over the overturning of Roe.
The legal impact
Dobbs v. Jackson Women’s Health shows that the court is not scared to overturn precedent. Liberals are freaked out, concerned that this puts other freedoms at risk. Neither contraception nor same-sex marriage is mentioned in the Constitution. Like abortion, both are protected under the 14th amendment — which turns out to be a shaky foundation. Plus, the court could go a step further than overturning Roe v. Wadeand actually enact a federal abortion ban.
The Case That Doomed The Climate
The background
Get comfy. This is a saga. It all began when the Obama administration introduced the Clean Power Plan (CPP) which aimed to shift US energy generation towards renewables and cut greenhouse emissions from the power sector by 32% by 2030 from 2005 levels. The policy was to be administered by the Environment Protection Agency (EPA), which claimed the authority to do so through Section 111 of the Clean Air Act — a broad and kinda vague piece of legislation that leaves gaping room for interpretation.
Unsurprisingly, oil and coal-producing states were not thrilled about the idea and challenged it in court. Once the policy came into effect, it was almost immediately put on hold by SCOTUS in a split decision led by conservative judges. This was seen by some as a crazy move by the court, given that the CPP was never implemented and had not been through any lower jurisdictions.
When the Trump administration came into power, it tried to rescind the stayed CPP, claiming the EPA had overstepped its statutory authority and went on to introduce far more lax environmental regulation. Following legal action from blue states, the DC Circuit invalidated both of those actions.
When Biden came to power, the EPA indicated that they did not plan to implement the CPP but instead would introduce their own new climate regulations. That didn’t stop red states from approaching the courts again and asking them to re-rescind the Obama-era CPP (yep, that old thing that no one plans to use) and restore Trump’s regulations. Confused yet? The ultimate goal of this legal challenge is to pre-empt new policies from the current government which could force energy plants to shift towards renewable generation.
West Virginia v. EPA
When the case came before SCOTUS, the court ruled in a 6-3 split that EPA did not have clear congressional authorization to enact the CPP and that regulation of this nature needs to come from Congress rather than a government agency. The judges that represented the majority opinion were all nominated by Republican presidents. Likewise, all the judges that sided with the dissent were nominated by Democrats. In short, it’s pretty clear that SCOTUS has been acting politically.
The direct impact
Although the Biden EPA never planned to use the CPP, this ruling is a huge deal. It’s hard to see how the agency can do anything that will have a meaningful impact on global warming without the court getting in the way. And Congress, the only viable alternative route to regulation, is unlikely to save the planet while in a constant state of deadlock. President Biden promised the rest of the world that he would halve US greenhouse gas emissions by 2030. West Virginia v. EPA has made that promise impossible to keep.
The legal impact
The court justified its decision using an expanded version of something called the major questions doctrine (MQD) which states that “courts should not defer to agency statutory interpretations that concern questions of ‘vast economic or political significance.’” In other words, agencies — like the EPA — should stay in their lane and not exercise their power beyond specific instructions from Congress.
This little-used doctrine has found its way into the spotlight during this new era of SCOTUS. It is only supposed to be used in exceptional cases, but the court has handed it out like candy as of late. For example, during the pandemic, it was used to block a vax-or-test mandate for employers with 100+ workers.
The problem with using the MQD in this way is that it calls every regulation into question. As Bloomberg Law put it, “Nearly every nationwide agency regulation has deep economic and political significance. From rules on food safety, to workplace conditions, to rules governing union elections, to false advertising, to net neutrality, to opening gas pipelines and electric transmission lines used by the owners’ competition — the list is almost endless.”
And very few agency regulations will be based on a clear, specific authorization from Congress. Mandates handed down to agencies are intentionally broad to allow them to respond to new and changing issues.
The fear is that majority judges can use the MQD to block just about any kind of regulation from any agency, transforming this relatively obscure little piece of text into a political weapon. The question is whether SCOTUS has the will to do so.
The Vote Against Fair Elections
Next up is a case that critics fear will threaten free and fair elections. Moore v. Harper is scheduled to go before the court in the coming term. What’s at stake, according to NPR, is “a legal theory that would give state legislatures unfettered authority to set the rules for federal elections” without any checks or balances.
The background
The case stems from a quarrel in North Carolina where the state supreme court revoked a gerrymander of the state’s congressional map that gave Republican candidates a major leg-up. In other words, Republicans had redrawn the map to maximize the number of red voters in each electoral constituency and the court said, “nice try.” Republican legislators responded by saying that neither state courts nor state constitutions had any authority over how federal elections are run.
The legal basis
Legislators have based these claims on constitutional provisions that give the legislature of each state the power to regulate federal elections. Or rather, as The Atlantic put it, they’ve based them on a “stark misreading” of those provisions. There is a huge body of scholarship discrediting the so-called independent-state-legislature theory and critics say that the clauses are not intended to give the legislature exclusive control of elections.
This isn’t the first time in recent history that the theory has raised its head. It was used in legal challenges that hoped to overturn the 2020 presidential election result. SCOTUS rejected those challenges. Yet if they get behind the theory in Moore v. Harper it will add fuel to the feeling that the court’s conservative majority is interpreting the law as it suits them.
What this means for in-house teams
Regardless of where you stand politically, it’s important for in-house legal teams to understand the cases on the SCOTUS docket. That’s always been true but it’s even more important in an era when a single ruling can overturn decades of precedent and call into question huge swathes of legislation.
It matters to your employees. People care about the stance their employer takes on issues like abortion and the environment. In fact, just 1 in 5 Gen Z workers say they would work for a company that didn’t share their values. Dozens of companies are now offering to cover employees’ costs if they have to travel to access an abortion. Companies with a liberal outlook could be called on to provide more support to their employees in the future. For example, if SCOTUS rolls back the right to access contraception, companies could cover travel costs for employees who have to go out of state to do so. And if SCOTUS fails to protect same-sex marriage, companies could support LGBTQ+ employees by helping them relocate to different states. It sounds outlandish but everything seems to be on the table in the new era of SCOTUS.
It matters to your customers. Post pandemic, 42% of people have changed their consumption habits because of their stance on the environment. Customers want to support businesses that share their perspectives on things like global warming, affirmative action, and gun control — all of which have come before the court this year. In fact, as one crisis communications expert put it, “Companies are realizing there’s a risk to not engaging” on hot button topics. And as we all know, where there’s risk, there’s work for GCs.
It matters from a compliance perspective too. If the EPA case is anything to go by, the regulatory landscape could have some serious changes in store. And if power continues to shift away from the federal government, it could create an America where there are even more vast regulatory differences from state to state *insert sarcastic woop woop*, which could impact the way your company does business.
So keep your eyes on SCOTUS. If you’re anything like us, you’ll find it hard to look away.
