The future of the Supreme Court: A conversation with law professor Richard W. Garnett

On Oct. 3, the Supreme Court of the United States (SCOTUS) began hearing cases for its new term, following one of its most significant sessions that featured a landmark abortion ruling, a major leak, ideological differences and security threats.

Chief Justice John Roberts expressed hope for a return to “normalcy,” and the court welcomed Justice Ketanji Brown Jackson, the first Black woman on the Supreme Court. 

Also welcomed back, the public can now attend oral arguments in person for the first time since the COVID-19 lockdown of 2020. Justices remain under tighter security than in previous years, though barricades around the Supreme Court following last term’s ruling that overturned Roe v. Wade have been removed.

Richard W. Garnett is the University of Notre Dame’s Paul J. Schierl/Fort Howard Corporation Professor of Law, director of the Law School’s Program on Church, State & Society and a concurrent professor of political science. He clerked for the late Chief Justice William Rehnquist during the court’s 1996 term. Garnett is co-author of “Religion and the American Constitutional Experiment.” He teaches and writes about the freedoms of speech, association, and religion and constitutional law more generally and is a leading authority on the role of religious believers and beliefs in politics and society.

Garnett discusses the future of the Supreme Court.

How do you respond to complaints that the Supreme Court is “broken” or “illegitimate”?

This year’s Supreme Court term, like the last one, will involve a number of high-profile, controversial cases and, as usual, commentators’ and critics’ attention will focus almost exclusively on them. However, it is important for Americans to appreciate that the vast bulk of the court’s work involves technical legal questions, not ideological or partisan battles. Those who claim or complain that the court is “political” or even “illegitimate” simply because the justices do not always deliver their preferred policy outcomes misunderstand the court and its role in our constitutional system.  

The court is not “broken” simply because it has recently corrected some previous errors or because a majority of the current justices were appointed by presidents of one particular party. The threat to the court today comes not from the justices’ rulings but from media coverage and political criticism that assume the court’s role is to deliver particular results.

As the first Black woman, how will Ketanji Brown Jackson influence the Supreme Court? 

It is too early to tell, of course. All of the justices bring their experiences, formation and background to their role; at the same time, they are all committed to deciding legal questions, as best they can, on the merits and not on the basis of their personal beliefs or preferences. Apart from her influence on the court, though, it seems very likely that her groundbreaking appointment will inspire many citizens, lawyers and law students.

What are the most important cases you’re watching this term? 

It is worth remembering that every case at the Supreme Court is important to someone. And, we do not yet know all of the cases the justices will consider during this term; they are likely to add several dozen more. That said, like most public law scholars, I am interested in the cases involving the use of race in college admissions and also those having to do with the role of state courts in reviewing states’ election laws.

In addition, the justices are considering cases involving — to mention just a few — the tension between free-speech rights and antidiscrimination law, the ability of a state to regulate in-state commercial activity when that regulation has dramatic out-of-state effects, the reach of the Clean Water Act and the legality of certain Biden administration immigration policies.  

There were several high-profile religious freedom cases during the last term. What are some other religious liberty questions that you expect to come before the court this term? 

Last term was one of the most significant in the court’s history, in terms of religious freedom and church-state relations. So far, there are no major religious liberty cases set for argument, although there is a chance the justices will take up a New York case involving the right of a religious institution, Yeshiva University, to decline official recognition for an LGBT student group. In addition, there could be new religious freedom challenges to official vaccine mandates for public employees, public school students, etc.

What will be the impact of the overturn of Roe, and how might that decision affect other precedents or invite new challenges to past decisions?

The overturning of Roe v. Wade means that the question of abortion regulation is now one primarily for state legislators and courts. In many large states, with very permissive abortion laws, the Dobbs decision will not have any effect. In some others, there will be efforts to convince state courts to find Roe-type abortion rights in their own state constitutions. In still others, states will enact new regulations that, under Roe, would not have been permissible, and those new regulations will, almost certainly, be challenged. And we can expect efforts on the part of the current administration to use the powers of the executive branch to increase access to abortion and to push back on states’ pro-life policies.

The Dobbs decision was a reminder that, among other things, all of the justices believe that, sometimes, a past decision of the court is so misguided, and so damaging, that it may and should be abandoned. Again, no justice and no commentator believes that past precedents may never be abandoned, and nearly everyone agrees that stability and predictability are important in the law. Roe v. Wade was contested and controversial from the very beginning and its reasoning was widely seen, including by people who support abortion rights as a policy matter, as weak. The court majority determined, applying familiar and fairly settled criteria, that the decision was so wrong that the law’s integrity required them to admit, and undo, their mistake. 

How will the leak of the Dobbs opinion affect the court going forward? 

The leak of the Dobbs draft was extremely regrettable and, if the leaker is a court employee, a gross breach of trust. Not only did the leak put some of the justices in very real danger, it undermined the judicial process and, indeed, the rule of law. It appears to have been an attempt to put non-legal pressures on the court and to undermine the court’s institutional standing.

What more should be done to ensure the justices and their families are protected from violence or physical intimidation?

It is unfortunate, but also unmistakably clear, that the justices require protection from people who do not respect the rule of law or the court’s role in our constitutional democracy. It is, of course, well within every citizen’s right to criticize the justices’ work, but there should be no tolerance for threats.

Contact: Richard W. Garnett, 574-631-8078, rgarnett@nd.edu