Like many institutions, the University of California, Irvine School of Law held – in conjunction with Ms. Magazine – a panel to look back at the Supreme Court’s 2021-22 term. However, Wednesday’s event, held before a packed house at the Irvine Barclay Theater and live-streamed to an even wider online audience, was likely the only one that began with a rousing a cappella gospel performance. Actor and director H. Adam Harris, who introduced the panel, sang “Gonna rise up hoping. . . . Gonna rise with equal justice under the law.”
Although Harris’ message was hopeful, the mood among the panelists was considerably less so. The six panelists and moderator Michele Goodwin, a professor at UCI’s law school and host of a popular podcast on women’s issues, were sharply critical of the court’s recent decisions throughout the nearly 90-minute program. Erwin Chemerinsky, the dean at the UC Berkeley School of Law, argued that the “writing’s been on the wall for a long time,” with the 2016 refusal by then-Senate Majority Leader Mitch McConnell to hold a hearing for Merrick Garland, President Barack Obama’s nominee to fill the vacancy created by the death of Justice Antonin Scalia, and the 2020 confirmation of Justice Amy Coney Barrett to succeed the late Justice Ruth Bader Ginsburg. This term, Chemerinsky observed, 19 of the court’s 60 signed opinions were decided by the court’s conservative majority, with a vote of 6-3.
The panelists faulted the justices’ reliance on history and the text of the Constitution to reach decisions in New York State Rifle & Pistol Association v. Bruen, striking down a law that required New Yorkers who wanted a license to carry a concealed handgun to show a special need to defend themselves, and Dobbs v. Jackson Women’s Health Organization, overruling the court’s landmark decisions establishing the right to an abortion.
Chemerinsky maintained that “words are inherently ambiguous,” as is history. Chemerinsky questioned the decision to rely on history when, he observed, the weapons in use today are different from those in use in 1791, and abortion is a very different and much safer procedure than it was in the late eighteenth century. But if we are going to look at history, he continued, why should judges take a narrow view, looking only at the era in which the Constitution was drafted or when the 14th Amendment was adopted?
Mary Anne Franks, a professor at the University of Miami School of Law, decried what she described as an “effectively fundamentalist” reading of history and Constitution by the conservative justices. The justices, she suggested, are looking for the interpretation that best serves their interest. History, she continued, sometimes matters for conservatives – but, she added, sometimes it doesn’t, depending on whether it gets to the result that conservatives want.
Mark Joseph Stern, a senior legal writer for Slate, emphasized that none of the justices are historians, and he observed that all of them are “cherry-picking” evidence from history to support their arguments. “But at least the liberals admit that” they are cherry-picking, Stern said.
Mary Ziegler, a law professor at the University of California, Davis, described the majority’s approach to history in Bruen as a “Goldilocks” theory. The opinion by Justice Clarence Thomas rejected some history that wasn’t useful to it as, for example, too old or too much of an outlier, she said.
Chemerinsky predicted that the court’s decision in Dobbs would have a far-reaching impact that could extend to, for example, laws banning the morning-after pill, IUDs, or travel to another state to obtain an abortion. Despite Justice Samuel Alito’s assurances to the contrary in his majority opinion, Chemerinsky said, “[o]nce the court pulls the thread” from the fabric, it’s hard to know how the other rights under the umbrella of the right to privacy can continue to stand.
The panelists were similarly critical of the court’s cases dealing with the power of federal agencies. Discussing several cases involving agency authority during the COVID-19 crisis, Aziza Ahmed of the Boston University School of Law saw a theme: The executive branch tried to act, she said, but the Supreme Court undermined it. The court, she posited, has a new doctrine, which amounts to “gutting the administrative state of its power.”
Turning to West Virginia v. Environmental Protection Agency, in which the justices limited the EPA’s authority to regulate greenhouse gases, Chemerinsky disparaged the majority’s use of the “major questions” doctrine – the idea that if Congress wants to authorize an agency to tackle important economic or political questions, it must say so clearly. The court never defines what constitutes a “major question,” Chemerinsky contended, and in so doing “opened the door to challenges to countless federal statutes” giving agencies power.
The panel briefly touched on the court’s decision in Vega v. Tekoh, holding – again, by a vote of 6-3 – that a violation of Miranda v. Arizona, requiring police to inform a suspect of his right to an attorney, does not provide a basis for a federal civil rights claim seeking money damages for that violation. Chermerinsky argued that, although the Supreme Court in United States v. Dickerson indicated that Miranda created a constitutional right, this year’s ruling “puts Miranda very much in doubt for the future.”
Stern described the court’s decision in Tekoh as a “textbook example of the way the Court tees up major decisions,” while Ziegler drew parallels with the court’s refusal to block S.B. 8, the Texas law that both prohibited abortions beginning around the sixth week of pregnancy and tasked private citizens with enforcing the law. Even if the Supreme Court says that you still have a right, Ziegler emphasized, it will “eviscerate your access to it.”
The panel concluded in much the same way that it began, with Stern describing the just-ended term as the “start of a new conservative revolution in the law.”
Chemerinsky did not see the 2021-22 term as the beginning of a revolution, noting that the court has had a conservative majority for years. But, he continued, the current court is “more conservative than it has ever been.” And, observing that next term the justices will tackle high-profile cases involving affirmative action, voting rights and religion, he agreed with Stern that the current conservative majority is “just getting started.”