A seismic shift has taken place at the Supreme Court – but it’s unclear if the shift is on principle or party

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(THE CONVERSATION) In the summer of 2022, the United States witnessed a sea change in the way the majority of Supreme Court justices understand the Constitution.

At the end of a single term, the court rejected the long-standing constitutional right to abortion, expanded the right to guns and ruled that religion could play a greater role in public institutions.

These findings reflect a seismic shift in US law and policy, but court scholars dispute what exactly kind of change it was – principled or partisan change. As a keen observer of constitutional politics, I believe this is an important debate with profound consequences for the court’s perceived legitimacy.

Some Supreme Court scholars see the Court’s evolution as the rise of “profound, principled constitutional theory,” while others see it as “conservative policy choices under a pretentious guise.”

Public confidence in the court, meanwhile, plummeted after the abortion decision Dobbs v. Jackson Women’s Health Organization at the lowest level since records began in the 1970s.

Public perception of the court and its legitimacy may depend on whether citizens view recent rulings as a victory for one side in a long-running debate of ideas, or simply a triumph of partisan politics. .

Origins of the current court

Supreme Court Justice Sonia Sotomayor, arguably the most liberal of the current justices, called the Court’s controversial rulings in 2021 “the result of a restless, newly constituted court.”

Observers of the new court mostly agree on how it has changed, but disagree on what worries the justices.

The change was built over several years, driven by the longstanding beliefs of former conservative justices — like Clarence Thomas and Samuel J. Alito — as well as the addition of three new conservative justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – all three appointed by former President Donald Trump in an unusually short period of time.

Presidents George W. Bush and Barack Obama, for example, each had two appointments during their eight years as presidents, while Trump helped place three new members on the court in a single four-year term.

These back-to-back appointments created a new supermajority of six Conservatives in the field. This changed not only the court’s decisions, but also the selection of cases the court would hear.

The court chooses the few cases it will hear from among the thousands of applications for review. If there were only five Conservative judges, they could not guarantee they had the majority needed for a final vote.

Often Chief Justice John Roberts, generally seen as an institutionalist determined to protect the public perception of the court, or Gorsuch, widely seen as a libertarian-leaning protector of the rights of criminal defendants, immigrants and Native Americans, joined the Liberals to reverse a decision.

A supermajority of six conservative judges gives them the confidence to take on major cases. Five make a majority on the Supreme Court, but six can make a move.

This is a change in constitutional theory

One view of the dramatic change at the court is that it reflects a long-running debate between two constitutional theories, or competing ways of reading the document.

The new court defends originalism, which has replaced its rival, living constitutionalism.

The theory of originalism holds that the main purpose of a written constitution is to protect against the inevitable bad behavior of government. The best way to uphold individual rights and ensure stable government is to uphold the exact language of the Constitution and the meaning it has expressed to Americans who have ratified it.

From a quirky perspective, allowing smart lawyers to watch the Constitution evolve without popular approval simply defeats its purpose. Thus, this constitutional theory holds that the document can only be changed by amendment, but not by the courts.

The theory of living constitutionalism, on the other hand, is rooted in the idea that the Constitution must adapt to the evolving values ​​of the American people, as well as to the needs of contemporary society. This allows the Supreme Court to reinterpret the meaning of the language and expand constitutionally protected rights.

One side of the debate believes that maintaining the true meaning of a written Constitution requires stable principles, while the second believes it requires evolving principles.

The two readings of the Constitution are not reconcilable.

It’s partisan politics

The second view of what happened in the last term of the Court is that the change was not about honest constitutional debate, but rather partisan politics. From this point of view, judges are politicians in togas who pursue the political objectives of their party. That means when Republican appointees won a majority on the court, GOP preferences followed.

Proponents know which school of thought is most likely to give them the results they want.

In recent decades, partisanship has become a stronger force in shaping the appointments process. President Richard Nixon, for example, was a Republican who nominated Supreme Court Justice Harry Blackmun, who later wrote the liberal majority opinion for Roe v. Wade in 1973.

But today, judges appointed by Republican or Democratic presidents are chosen much more carefully, with help from outside groups like the conservative Federalist Society.

The partisan view encourages people to see constitutional issues as they often see politics—simply ways to dodge principle while pushing ideological agendas. He characterizes judges as pawns and constitutional debates as smokescreens.

This perception may actually be accurate for some of the judges at times. But that’s surely not true for most judges either, most of the time.

Perhaps the worst result of partisanship is that interpretation of the Constitution becomes a simple matter of group identity, with Democrats and Republicans cynically stuck in permanent camps. This makes crucial public deliberations about the constitutional foundations of a free society nearly impossible.

The emphasis on constitutional theory argues that when the debate is not about principle, it should be, while the partisan view argues that even when it appears to be, it is not. .

The constitutional debate comes and goes as the court’s control shifts. Over time, this will likely change again, as long-term partisanship degrades the legitimacy of a correct court, as well as an incorrect one.

This article is republished from The Conversation under a Creative Commons license. Read the original article here: https://theconversation.com/a-seismic-change-has-taken-place-at-the-supreme-court-but-its-not-clear-if-the-shift-is-about-principle-or- party-190815.

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