(CNN)Judge Ketanji Brown Jackson, a landmark candidate, appears before senators Monday for a Supreme Court seat that has itself moved in reverse.
The court has allowed Texas to ban abortions since September and appears to be on the cusp of wiping out half a century of reproductive rights nationwide. It has cut back on voting rights protections and racial remedies. And she has increasingly sided with conservative believers in the dispute over the separation of church and state.
Jackson’s hearings will reveal her status as the first black woman to be nominated for the Supreme Court. But the televised sessions will also draw national attention to the evolution of America’s highest court, now controlled by a conservative supermajority.
Bolstered by the 2020 succession of Amy Coney Barrett to the late Ruth Bader Ginsburg’s seat, the majority by summer, when the current session ends, is likely to bring about an even greater sea change in American law.
The conservatives appointed by the Republicans see their efforts as a correction of the previous course. On abortion rights, Judge Neil Gorsuch wrote two years ago that “in a highly politicized and contentious arena… we have lost our way”.
Liberals today counter that the sudden change with new judges is undermining the court’s institutional legitimacy. During December’s wrangling in a Mississippi abortion ban dispute, Judge Sonia Sotomayor noted that state officials believed their law would be upheld because of the new members of the court.
“Will this institution survive the stench created by the public perception that the Constitution and its reading are just political acts?” she asked.
The Senate Judiciary Committee hearings could offer a first glimpse of how Jackson, 51, would see her place in the downsized liberal wing of the court and how she might work with peers on both sides of the ideological divide.
President Joe Biden selected Jackson to succeed outgoing Judge Stephen Breyer. She is a former federal public defender who has served on lower US courts for nearly a decade. The Harvard law graduate also worked as a legal clerk at Breyer early in her career.
No Democratic candidate has stood before the Senate Judiciary Committee since 2010 and the nomination of Elena Kagan. (In 2016, President Barack Obama selected Merrick Garland for a vacancy created by the death of Judge Antonin Scalia, but the Republican-controlled Senate refused to hold hearings or act on the nomination.)
Kagan joined a 5-4 conservative-liberal bench, and in the 12 years since, the swing to the right on abortion, religious freedom and voting rights has only deepened. The Shelby County v. Holder in 2013 specifically defined the court under Chief Justice John Roberts. It removed a section of the Voting Rights Act of 1965 that required states and localities with a history of discrimination to obtain approval from the Department of Justice before changing voting rules.
These and other decisions, including those allowing extreme partisanship and high electoral spending, have lowered the guard rails of democracy. At the same time, states have increasingly enacted regulations governing elections, and federal legislation protecting voting rights has stalled in Congress.
Last month, when judges summarily reinstated a card from the Alabama Congress that a lower court said had watered down voting rights for black people in the state, Kagan lamented a further undermining of the voting rights statute, “a statute that this court once knew that it all underpins American democracy.”
A new kind of Republican control
Republicans have dominated the Supreme Court for decades simply because of who held the White House and when seats on the bench became vacant. Since 1969, when Chief Justice Earl Warren’s Liberal term ended, 19 new justices have been installed, 15 appointed by Republican presidents and four by Democrats.
But Republican appointments have varied so much that their political and ideological identities have not always coincided, as with GOP-appointed Liberals Harry Blackmun, John Paul Stevens and David Souter. (Chief Justice Warren himself was an agent for Republican President Dwight Eisenhower.)
Those differences have vanished, overtaken by the careful ideological scrutiny conducted by former President Donald Trump and his recent GOP predecessors, with the support of the Federalist Society and outside advocates.
Democrats like Biden have sought liberal legal professionals, but at the same time they have sought diversity. Jackson would be the first black woman to serve on the Supreme Court in its 233-year history.
President Barack Obama appointed the first Hispanic female judge, Sotomayor, in 2009, and Lyndon Johnson appointed the first African American, Thurgood Marshall, in 1967. Republican Ronald Reagan appointed the first female judge, Sandra Day O’Connor, in 1981.
Areas of greatest change
The suspension of abortion rights by the new majority was one of the most startling developments. Last September, the court refused to block a Texas law that bans abortions about six weeks before most women know they are pregnant.
The law defies the Roe v. Wade in 1973, which legalized abortion nationwide and banned the government from placing undue strain on women who wanted to terminate a pregnancy before the fetus was viable at around 23 weeks.
Abortion clinics in Texas joined the US Department of Justice in asking the Supreme Court to block the law, to no avail. (The Texas Supreme Court ruled out a related lawsuit this month, and pregnant women in Texas have traveled to nearby states for medical care.)
Separate from the Texas case, the Supreme Court is currently weighing the constitutionality of Mississippi’s 15-week abortion ban. State officials have asked judges to use the case to try Roe v. completely toppling Wade.
Other Republican-led states have taken their cues from Mississippi. The Florida Legislature issued a 15-week ban earlier this month. In response, Biden tweeted, “My administration will not condone the continued erosion of women’s constitutional rights.”
The Supreme Court majority will have the final say on whether a right to abortion survives, as the court held in 1973 on the basis of the Fourteenth Amendment guarantee of liberty.
Religion necessarily colors disputes over reproductive rights and has become a dominant issue in the transformed court. Some judges have complained that religious freedoms are under siege. In a 2020 speech before the Federalist Society, Judge Samuel Alito cited the Covid-19 rules, including capacity limitations for church services, as an example.
“The pandemic has led to previously unimaginable restrictions on individual freedom,” he said.
However, the conservative majority has sided with religious groups questioning Covid-19 restrictions and, more broadly, exempting religious believers from myriad government regulations. In 2020, she sided with the Trump administration when the administration strengthened the ability for private employers to opt out of Obamacare birth control in employee insurance plans over religious or moral objections.
Racial dimensions in new cases
The nation’s first black female judge would join a bench set to immediately plunge into new racial dilemmas. The judges said they would reconsider previous decisions that allowed colleges and universities to consider applicant race as one of many criteria used to achieve campus diversity.
A group called Students for Fair Admissions is challenging the politics of racial affirmation at Harvard and the University of North Carolina. These cases will be heard in the 2022-23 session, which begins in October.
Even before the Supreme Court’s conservative supermajority was won by Trump-appointed individuals, judges had rejected certain racist remedies, including plans to voluntarily integrate public schools. Writing in this 2007 case, Roberts opposed plans that included students’ race in school assignment: “The way to stop racial discrimination is to end racial discrimination.”
But the court (over the chief justice’s disagreement) had narrowly upheld the college’s affirmative action. Such practices now seem ripe for a reversal, with the addition of Brett Kavanaugh for retired Justice Anthony Kennedy in 2018 and with Barrett for Ginsburg. Kennedy and Ginsburg previously voted to allow affirmative action.
The new majority is also likely to further roll back the 1965 Voting Rights Act with the electoral redistribution controversy already accepted for the 2022-23 session. (In 2021, the court dismissed voting rights concerns and upheld Arizona’s measures, which required ballots cast by people in the wrong district to be discarded entirely and prohibited the collection of absentee ballots by third parties, such as residents of a nursing home, punished separately. )
In the Alabama redistribution dispute, which was added to the upcoming judges’ calendar, a special panel of three judges said the state should have created a second majority-Black district based on the black population and its geographic compactness.
The lower federal body said of the controversial card (which the Supreme Court revived): “Black voters have fewer opportunities than other Alabamaans to elect candidates of their choosing to Congress.”
A separate Supreme Court development could affect future federal elections, including presidential ones. When judges rejected Republican challenges to congressional tickets in North Carolina and Pennsylvania earlier this month, four conservatives expressed interest in a theory that would give state legislatures full control over how their federal elections are conducted without being overseen by their own state courts and States would review constitutions.
This controversial doctrine, pushed by Trump attorneys in 2020, could have turned the results of the last presidential election on its head and affected what happens in 2024.
“We’re going to have to resolve this issue sooner or later,” Alito wrote March 7, contradicting a court order refusing to intervene in the North Carolina case, “and the sooner we do, the better.”
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