Conservative justices who now dominate the US Supreme Court have overturned a 111-year-old New York gun law, ruled in favor of public funds for religious education and appear set to overturn a half a century of abortion rights.
For decades, the court took a step-by-step approach to the law, crafting decisions that followed the common thread of American public opinion. Even judges appointed under President Donald Trump have been seen as progressives, and some court watchers say the significance of recent rulings has been overstated.
But critics say judicial caution is being sent by a conservative court that is less reluctant to overturn modern precedent and more interested in returning the law to its historic 18th-century roots.
As Abortion Ruling Approaches, U.S. Supreme Court Erects Barricades for the Public
What’s happening today “is a rapid overhaul of American law,” said Joseph Fishkin, a scholar at UCLA Law School. Such an approach to case law is not without precedent for the court. But the current approach marks a throwback, he said, to the early 20th century, when “the Supreme Court was routinely the branch conservatives turned to in an attempt to thwart progressive reforms.”
Today’s judges “don’t care about real-world consequences,” added Carolyn Shapiro, founder and co-director of the Institute on the Supreme Court of the United States at Chicago-Kent College of Law. “They don’t care about the disruption and chaos that can ensue.”
Decades of recent studies on how the court “generally doesn’t stray too far from public opinion”, she said, are only a “description of how the court has turned out to be”.
“What sets the current court apart is not just that it is relatively on the activist side, as opposed to the passive side – but that the court implements a view of the Constitution that is quite closely aligned with that of activists within of the Republican Party.”
Such a view is supported by some of the Court’s recent and expected decisions. On Tuesday, he ruled that a state cannot bar students seeking religious education from its tuition assistance program, a move seen as an attack on the separation of church and state. .
On Thursday, he struck down a New York state law, passed in 1913, that requires government permission for the unlimited carry of handguns. The court ruled that the Second Amendment, passed in 1791, gives an individual the right to carry a handgun for self-defence outside the home, a finding that has enraged Democrats.
“This decision contradicts both common sense and the Constitution, and should trouble us all deeply,” President Joe Biden said. New York Mayor Eric Adams, a former police captain, said the ruling “has made each of us less safe from gun violence”, while ignoring “the shocking crisis of gun violence each day that engulfs not only New York, but engulfs our entire country.”
A draft notice leaked in May suggests the court is preparing to overturn the Roe v. Wade and Casey cases, which guaranteed access to abortion nationwide. Such a decision would be a momentous change in the country’s reproductive rights landscape, although a definitive opinion has yet to be made public.
But a careful reading of recent court rulings, say other scholars and lawyers, suggests a less disruptive approach.
“Conservatives don’t make very good revolutionaries, and they never have,” said Ernest Young, a constitutional law scholar at Duke University. “A lot of the conservative judges on this court are really conservative in the sense that they basically want to defend the institutions that we have and make them stronger – not drastically change them.”
History has provided other examples of supreme courts that were meant to upend society but failed to do so, he said. A book about Warren Burger, who was appointed Chief Justice by Richard Nixon, was titled: The Burger Court: the counter-revolution that wasn’t. This court did not overturn key rulings such as person voting or the Griswold case, which ensured married couples could purchase contraceptives without permission.
Indeed, it was under Mr. Burger that Roe v. Wade was released. “The rate of creation of new rights has slowed down. But it didn’t stop,’ said Professor Young, who was a clerk under Supreme Court Justice David Souter.
He sees the current court in a similar way. Gun restrictions in New York law — the one overturned on Thursday — likely wouldn’t have had “very lucky even if there was a different set of judges,” he said.
Michael Bindas, senior counsel at the Institute for Justice, says the court’s ruling this week on school funding was also misunderstood. Bindas argued the case in court, successfully fighting a Maine Department of Education policy that denied tuition assistance payments to students attending non-denominational schools.
The court’s decision “simply adhered to this long-standing notion that the United States Constitution requires government neutrality toward religion — not hostility,” Bindas said. Maine’s politics were “the embodiment of hostility to religion,” he said.
And, he noted, such a conclusion is not new. The Institute for Justice has brought four choice-related education cases to court over the past two decades. In the first, decided in 2002, the court found that having “religious options alongside non-religious options is perfectly permitted by the US Constitution,” Bindas said.
Critics said the court was now breaking through the wall between church and state.
Mr. Bindas disagrees.
“These types of programs are not about funding schools, whether religious or not, in the same way that, for example, the food stamp program is not about funding grocery stores or Medicaid is not about funding schools. hospitals. It’s about helping individuals and letting them decide where to use it.
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