On a recent episode Amicus, Dahlia Lithwick convened a table of experts to break down the end of this year’s Supreme Court term. During the conversation, she spoke with professors Niko Bowie and Katherine Franke about how the court sees itself and the seismic shift its enacting. A portion of their discussion, which has been condensed and edited for clarity, has been transcribed below.
Dahlia Lithwick: One of the reasons I so wanted to talk to you for this show is that you think about the structural institution as part of government. And you have been warning us—you were warning the Biden commission—to stop thinking of judicial review as this powerful, magical uniform that helps act as a minoritarian check on reckless majorities.
I want you to tell me what the answer is to the question that I’ve had leveled at me, which is, “You just don’t like the outcomes. This is not a structural critique. You were perfectly happy with Windsor. You were perfectly happy with Roe and Obergefell. So you’re just a hypocrite. You’re fine with the court acting as a humanitarian check, as long as it’s your civil liberties that are being protected.” I wonder what’s the formal smart Niko answer to that question.
Niko Bowie: It’s important to keep our perspective on what is actually happening. So what role is the court currently playing in American government and American politics? And I don’t want to lose sight of that, because from an external perspective, a term like this seems pretty clear what’s going on.
In 2020, the national GOP, in preparation for Donald Trump’s campaign, it had no new national platform. It just took the 2016 platform. In part that was because of the influence of candidate Trump. But in part it was because the GOP can effectively enact its entire domestic policy agenda through unrestrained state legislatures in red states and unrestrained federal courts in blue states. So the Republican Party has, to its credit, spent the past 30 years identifying these two institutions—state legislatures and federal courts—as important sources of power. And they have taken over these two institutions.
Most states at this point are under one-party control. There’s currently a 6–3 conservative majority on the court that doesn’t look like it’s going anywhere anytime soon. And so in theory, Congress or federal agencies can threaten this dominance. Congress could, for example, enact a law that codifies Roe, or a much better version of Roe, and says here is the new national standard for reproductive justice. But so long as the Republican Party controls either the House, or 40 senators, or the presidency—it just needs one of those three veto points—Congress can’t do anything new. And in theory, there are existing federal laws like the Voting Rights Act or the Civil Rights Act that would prevent state legislatures from doing things. But this Supreme Court is taking care of those laws by either invalidating them or interpreting them so absurdly narrowly that they have no effect, and executive agencies can’t enforce them.
The summary of the role the court is currently playing is removing federal restrictions on red state legislatures and imposing federal restrictions on blue state legislatures. This is an institutional role that the court has played over time. The court has always been this dynamic source of allocating power between different institutions in the American federalism structure.
And so we, as the American people, have to decide what to do when it comes to these really important questions like what should reproductive justice look like in this country, what should our country’s response to climate change look like, what should we do about these massacres every day that are preventing people from going outside or to school with fear? And one answer is, well, we should rely on these six people who were appointed by presidents with the goal of imposing a policy agenda but who are not accountable to the public; who write opinions saying we are not accountable to public opinion, as Justice Alito just did in the Dobbs case; who specifically say we do not care what you think about us. That’s one answer for who should resolve these really important questions.
And another answer is our elected officials. We should have a national legislature that’s capable of enacting laws. We should remove the structural barriers that prevent Congress from enacting laws and responding to these pressing policy challenges. Because right now we have such an inert Congress that the only branch of the federal governments that’s acting is the federal courts and executive agencies. And what opinions like West Virginia v. EPA this term suggest is that federal courts will not allow executive agencies to do their own thing. And so long as we have this current structure where we just say whatever the Supreme Court says goes, we are going to continue to live in a system in which the most important questions facing all of us are decided by these six people.
And Katherine, one of the reasons I was so desperate to have you back is that you have been warning for a long time, and you certainly warned on this show after Dobbs was argued, that underneath this vision of rights, and justice, and equality, lurks a fundamentally faith-driven version of America. There has been a seismic change this term in how we think about religious liberty, how we think about the establishment clause. It shoots through everything that happened in Dobbs, whether we talk about it or not. And I think that’s another big, big change that, A, it is not clear to me folks have entirely clocked the degree to which this is seismic and, B, I don’t think we have a comfortable vocabulary for talking about it, but I know you do.
Katherine Franke: Well, you can always depend on Justice Thomas to say the quiet part out loud. And I think it’s interesting to read the Dobbs case right next to the Bruen case, the gun control case that the court decided right around the same time. And part of what Justice Thomas exclaims in Bruen is that gun rights, or the right to bear arms, is not a second-class right. It has to be treated as a first-class right. And this is what the court has been building over the last several terms: a pretty novel and historically unprecedented approach to the rights secured in the Constitution. Which is that there are certain rights that are first-class rights, or top-tier rights, and other rights, which if they exist at all, are really lower-level, less important rights.
So religious liberty, guns, property interests, sort of the traditional masculine rights, I would say, those are first-class rights, and all other rights have to surrender when they come face to face with gun rights, religious liberty, property rights. And so the Bruen case offers for us a portrayal of white male vulnerability in a way that needs to be protected by top-tier rights like religious liberty. We also have the image of Joseph Kennedy kneeling at the end of football games at his public school in Washington. He’s just a good guy who’s got God on his side. He’s not offending anybody, but they went after him. The story the court tells about the affront to his religious liberty interests and his faith portray him as a desperately vulnerable man of faith who’s a wonderful guy and a football coach.
And then in the gun control case, we get this idea of enormous danger that lurks out there. The court describes the world as crime-ridden and dangerous, and we need to—men, really, need to bear arms, white men do certainly, to protect themselves from those dangers. So we’ve seen a kind of layering, particularly at the end of this term, of the vulnerability of women and other people who could be pregnant, seemingly invisible to the Constitution, and the vulnerability of white men being hypervisible to the Constitution. And gun rights and religious liberty are going to come to the rescue.
This kind of tiering of rights is something new. And it’s certainly not something that the Framers, even if that was where we wanted to anchor the meaning of these rights, had in mind in creating an ecology of rights, among all of the rights that are secured in the Constitution, in ways that doesn’t elevate any other over any others.
What you’ve said is such an elegant formulation of two things that we’ve talked about so much on this show, which is, there are no tests here. We kick the legs out of Heller in the Bruen case. We kick the legs out of the Lemon test, which was the long-standing establishment clause test. We kick the legs out of the undue burden test and everything that was the Casey-Roe progeny. And we are in a test that I guess is called history. And I guess it’s called Glucksberg sometimes, but it is entirely feelings ball. It is who the justices have solicitude that then drives whatever the test is. And I also think it ropes in something that Mark and I wrote about last week that I think is important, which is the majority Justices have such visible contempt for state gun licensing authorities, for school officials who are trying to construct policies, for public health officials who were trying to respond to a lethal pandemic.
Once you’ve set it up that way, you’re not just setting up this solicitude for whoever the justices identify with, but a really very frightening layer of vigilantism that says you do what you think you need to do. If you need to pray on the football field, you do that. And it feels as though that’s what’s coming. Niko, am I overreacting?
Bowie: No, I don’t think so. And to be honest, I think the people who the justices have shown the most contempt for are the public. So Justice Alito’s opinion in the abortion case in Dobbs, I think, says explicitly that we do not care about public opinion, nor should we be shaped by public opinion. And it spends a large chunk of the opinion casting aspersions on Planned Parenthood v. Casey. And Casey, from almost 30 years ago, is one of my favorite decisions to teach to first-year law students, because in some ways it’s the decision in which the court is at its most self-aware. So I teach that it’s the most self-aware opinion in the Supreme Court’s history, because part of what the majority does before diving into doctrine is it just asks, “What gives us our power. Why do people listen to us when we decide that the 14th Amendment requires one thing or another thing?”
Because it’s not necessarily the text, the text of the 14th Amendment or any other amendment in the Constitution is so vague. Like, “Congress shall make no law,” in the First Amendment. Yet Congress makes all sorts of laws that restrict speech or religion. So it’s not just the text; it’s what makes the court’s opinion better than others. And the court’s answer in Casey is “legitimacy.” And it says the court’s power lies in its legitimacy, which it defines as a product of substance and perception that shows itself in the people’s acceptance of the judiciary as fit to determine what the nation’s law means and to declare what it demands. And what the court meant by that was the reason why the court has power is because people think what the court does is engage in principle decision-making. And to the extent that the public did not think that the court engages in principle decision-making, they wouldn’t take it seriously. It would be the equivalent of, say, when Mitch McConnell issues a press release.
We all remember in 2016, when Mitch McConnell said, “I’m not going to hold a vote for President Obama’s nomination of Merrick Garland. See these precedents.” And he cited a bunch of precedents from the 19th century. And then four years later when Justice Barrett was nominated, he changed his tune and said, “Well, I can distinguish that precedent from this precedent.” So what Mitch McConnell is doing is he’s engaged in analysis. He’s looking at precedent. He’s saying, “When is it OK to vote on Supreme Court nominations?” He’s coming up with a rule. The rule is something like 10 days before an election if my party is in control is good, but 10 months before an election, when my party’s not in control, is not good. In a sense, it’s the same thing that the court does.
It’s coming up with rules based on precedent. But when Mitch McConnell does it, we look at that and we think this has no internal weight to it. I can tell you what your rules are going to come out with, because I know you are Mitch McConnell. You are the leader of the Republican Party in the Senate. I’m not going to take seriously what you are saying when you’re announcing a new rule or saying that this precedent works in this case. And what this court is contemptuous of is that the public will treat the court the same way we treat Mitch McConnell. The court is not worried that when we read its opinions, we are going to say, “There’s nothing here. All of the rules that you are describing, all the precedent that you are quoting is just cover for what we all know you’re going to do because you’re Sam Alito.”
So to the extent that the court thinks we’re just going to automatically assume there’s a difference between an opinion like Dobbs and Mitch McConnell’s press release, I think that’s an unwarranted assumption, but it’s a cultural one and it’s a cultural source of the court’s power. And so what I am drawing optimism from in this moment is the extent to which members of Congress and the public are looking at these opinions and saying it’s not like the Constitution demands these outcomes. It’s not like these are the only outcomes you can think of. In fact, the court is overruling itself, reaching alternative conclusions. And so we don’t have to live in a system in which children are getting shot every day, and we can’t do anything about climate change, and people are forced to birth when they don’t want to. All of these things, we don’t have to live in this system just because the court says so. And so the court is not worried about that, but I think it should be.