Discussing the Past, Present, and Future of the Supreme Court

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On April 29, 2021, the Rockefeller Center welcomed NPR Legal Affairs Correspondent Nina Totenberg hosted at an event titled “The Supreme Court and Its Impact on You.” In a discussion moderated by Professor Charles Wheelan ’88, Totenberg provided insight on the future of the Supreme Court and answered audience questions regarding current pending cases as well as her decades of experience in covering the Court.

As the Court nears the end of its current term, there are several important cases whose decisions have yet to be formally announced. Of these cases, Totenberg referred to California v. Texas— a third challenge to the Affordable Care Act which seeks to invalidate the entire law—Fulton v. City of Philadelphia—a religious liberty case involving the ability of catholic charities screening foster care applicants to turn away LGBTQ+ applicants— and National Collegiate Athletic Association v. Alston— a case addressing whether the NCAA’s rules on if and how student athletes are compensated violates anti-trust law— as ones, which, among others she mentioned, have especially captured the interest of both the public and press alike.

Noting the particularly conservative alignment of the current Court, Totenberg noted that the outcomes of these cases—and possibly many more to reach the docket in the next few years—to be especially important. As a result of the ability of the previous Trump administration to have nominated and confirmed three particularly conservative justices, this court is “more conservative than any court dating back to the 1930s or even before,” Totenberg observed. As a result, Totenberg explained, social issues important to conservatives, such as freedom of religion, “…will really trump …every other value and the competing values that people have of various government functions.”

With regards to the judicial temperament of the new justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—Totenberg said that with some exception, “they have been every bit as conservative as their critics said they would be.” However, Totenberg also noted that the liberal wing of the Court has seen some recent shifts in statutory interpretation and ideology, particularly concerning a departure from their traditional advocacy for the First Amendment. These major shifts in the Court could result in multiple reversals to prior cases in the coming years; for example, Totenberg notes that Roe v. Wade, whose outcome protects a woman’s right to an abortion, may be ultimately overturned in the next few years. “It’s too messy not to,” Totenberg explained, arguing that with several laws explicitly banning abortion materializing in state legislatures, it would make legal precedent rather confusing for the more conservative Court to deliver a vague, middle-of-the-road ruling on the constitutionality of these laws. “If you’re going to accept that case for review,” Totenberg concluded, “you’re stuck.”

Can Democrats hope to restore the ideological balance of the Court in the next few years? With the recent announcement of President Biden’s Commission on the US Supreme Court, many have speculated that Biden will make efforts to either expand the Court or establish term limits for Justices in a short-term attempt to add more liberal-leaning Justices. However, Totenberg does not believe that these new ideas will be fruitful; given how many plans that the Biden Administration has for the country at-large (plans that require the support of a divided Congress), Totenberg noted that Biden would likely rather not “suck all the air out of the political system” and spend all his political capital on the one massive issue of Court restructuring. Furthermore, Totenberg argued that introducing the legislative or executive power to alter the number of Justices would reduce confidence in our judicial institutions, as future administrations may rely on this power to then use a certain ideological lean of the Court to their advantage.

More generally, Wheelan noted the increasing politicization of confirmations over the last few years, particularly with regard to nominees for the Supreme Court. Totenberg agreed, noting that these courts have become a vehicle for social issues that are important to “…the base of the Republican party,” and thus “a winning voting proposition” for the party at-large. Discussing the future of this Court in the context of a liberal Congress and President, Totenberg is “very curious to see whether this very conservative court that was very big on deferring to Executive power when Donald Trump was ruling, will be equally deferential if Joe Biden is ruling when they don’t agree with the Biden policy.” “… the …whole regulatory structure of the United States could change if the Court is so conservative that it goes back to an era where the President patrolled independent agencies entirely.”

Regardless of the politically motivated shifts and questions surrounding the Court in the past few years, Totenberg explains that her respect for the Court as an institution has only continued to grow over her decades of reporting. Totenberg cites several instances in which prominent members of the Court, such as Justices Brennan and Kennedy (devout Catholics) and Justice Fortas (a proponent of the Vietnam War) went on to act on cases in ways that “did not at all reflect their personal views,” whether it be by protecting a woman’s right to an abortion or upholding free speech that opposed the Vietnam War. It is in these cases, said Totenberg, that “…I have an enormous respect for the Court.”

-- Written by Shawdi Mehrvarzan’22, Rockefeller Center Student Program Assistant for Public Programs