How Trump Transformed the Supreme Court

The legal journalist Linda Greenhouse expects the new conservative majority to change American law on abortion, religion, and affirmative action.
The current Justices of the U.S. Supreme Court sitting for a formal group photograph.
“There’s certainly a fair chance that the Court will get rid of affirmative action,” Linda Greenhouse said.Source photograph by Erin Schaff / NYT / Bloomberg / Getty

Despite serving only one term in office, Donald Trump was able to appoint three Justices to the Supreme Court, giving it a six-member conservative majority. In September, the Court declined to block enforcement of a controversial Texas law that prohibits abortions in the state after approximately six weeks of pregnancy and allows almost anyone to sue a person who “aided or abetted” an abortion after that point. After a public outcry, the Court heard expedited arguments on the law earlier this month. Later this term, the Court will also consider the legality of a Mississippi law that bans abortions after fifteen weeks, a case that could result in the Court overturning Roe v. Wade.

This week, I spoke about the Court with Linda Greenhouse, a lecturer at Yale Law School and a contributing writer for the Times, where she reported on the Court for almost thirty years. She is the author of the new book “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court,” which recounts the time between Justice Ginsburg’s death and the conclusion of the Court’s first term with Justice Barrett. During our conversation, which has been edited for length and clarity, we discussed Court watchers’ views of the two newest Justices, Brett Kavanaugh and Barrett, the interplay between the Texas and Mississippi abortion cases, and calls for the liberal Justice Stephen Breyer to retire while Biden is President.

You write in your book that the last Supreme Court term turned out to be less of a catastrophe for liberals than was expected after Amy Coney Barrett replaced Ginsburg. You also say that this is a Court transformed. Can you synthesize those two things for us?

Amy Coney Barrett comes on. She’s the third Trump Justice, obviously, with her confirmation having broken all kinds of norms. The first substantive thing that happens after she joins the Court is that it flips on the relationship between religion and public health. That was the Thanksgiving-eve opinion in the New York COVID case. [On November 25, 2020, the Court blocked enforcement of New York State restrictions on worship services, finding that they violated the right to the free exercise of religion.] The Court had upheld similar restrictions when Ginsburg was there. By the end of the term, the Court had, on the shadow docket, without briefing or public argument, adopted really a new constitutional rule for evaluating claims of free exercise when religious worship and other human activities have been similarly limited. That was in a COVID-closures California case, Tandon v. Newsom. In my view, that was a major transformation.

On the other side of your question, the Court didn’t dismantle the Affordable Care Act, it didn’t totally shut down the DACA program, and, at the end of the day, it didn’t overturn the major religion precedent that people on the conservative side are upset about, in Fulton v. City of Philadelphia, although, as I argue, the Court rendered that precedent basically irrelevant. [In that case, which concerned a Catholic foster-care agency’s right to turn away married same-sex couples, the Court ruled in favor of the agency but did not overturn the precedent set by a previous case, Employment Division v. Smith, which found that there are no exceptions for the free exercise of religion with neutral and generally applicable laws.] Those things caused liberals to breathe a sigh of relief and conservatives to gnash their teeth, despite important opinions like the Voting Rights Act case that came down at the end of the term, which was a major blow to what’s left of the Voting Rights Act, another transformation.

What do you think differentiates Barrett from the other Justices?

Well, I think she’ll be important, for one thing just from sheer math, because she is in a position to make a difference. Certainly, in her early moves, both at the end of the term, in the Philadelphia case, and ten days ago in what she wrote in the Maine vaccine case, I read her as saying to [Samuel] Alito, “Hey, guy, don’t take my vote for granted. Yes, we’re both conservatives. Yes, we’re both religiously conservative, but my vote isn’t yours.” I think those two data points are quite significant. She uses the word “nuanced” in her separate opinion in the Philadelphia case. That’s not a word that we’ve seen very often written by conservative Justices.

Can you talk about how the Texas case has played out and what it tells us about the Court?

I think the failure to grant a stay of the implementation of the Texas law was outrageous and actually violated the Court’s norm. That is to say, the Texas law bans abortion way before fetal viability. The Court is going to hear, on December 1st, the Mississippi case [on a law] that bans abortion before fetal viability. They’ve undertaken to decide that question. So, typically, when the Court has granted a case, and a new case comes through the pipeline that raises the same question, the Court grants a stay, and they just simply put that case on hold until they decide the first case, and see to what extent that decision is going to bear on what should be the outcome of the other case.

I fully expected that that’s what was going to happen in the Texas case, because, even setting aside the bizarre vigilante aspect of the Texas law, at the heart of the law is a ban on abortion that everybody agrees under current law is unconstitutional. The question is, is the Court going to change current law, so that by the end of this term a law like that might no longer be unconstitutional? We don’t know, but they just went ahead and let the law take effect regardless. When then three weeks ago they decided, “Oh, really we should grant substantive review, not of the right to abortion, but of the vigilante aspect of this law, we should see whether the federal courts have jurisdiction, the way the law is written, to decide it,” I read that as two things: One, they still have not stayed the law. The law is still in effect. But maybe they were a little embarrassed about their growing tendency to decide things off the shadow docket—that is to say, without full briefing and argument—and some little voice inside the heads of four of them said, “You know, we’re going to get tangled up in this eventually, and we really should set it for argument, so that in the light of day we can try to sort out the weird procedural mess that Texas has handed us.”

Can you talk about the shadow docket, how much it’s being used now, and what you think that says or doesn’t say?

The shadow docket is a rather recently coined term for the Court’s emergency docket, which this Court and all courts have. When matters come to the Court that seem to require immediate judicial intervention, they’re handled off the usual procedure, and there’s nothing wrong with that. It wasn’t ever controversial until recently. It became controversial when the Court, during the Trump years, started actually making substantive law on the shadow docket.

That came to a head in this last term with the California COVID-closure case that limited congregating in a private home to three households. Two individuals who sponsored religious events in their home sued, saying it violated their right to free exercise. A district-court judge said, in a ruling upheld by the Ninth Circuit, there was no discrimination here because you couldn’t have more than that number of people in your home for any reason, whether it be a religious event or a party. But the Supreme Court majority found discrimination because other venues were being treated better. This is where we really see the impact of what has come to be known as the “most favored nation” approach on religion at the Court—if religion is treated worse than any comparable activity, that’s a violation of free exercise. The regulation was going to expire within a few days. Just let it expire. But the majority, it has to be the case, wanted this vehicle to make that law. If they had waited a couple of weeks, they wouldn’t have had a law to work with. That’s why the shadow docket has become controversial, because it is serving a purpose that it had not historically served.

Do you think we are likely to get a ruling that will either uphold or do away with Roe v. Wade, or do you think that this Court, for political or other reasons, is likely to find some sort of middle ground, which chips away at Roe but doesn’t definitively say it’s no longer the law of the land?

I think we’re now out of time to “chip away” at Roe. Roe sets a bright line. It’s been upheld in all the subsequent abortion cases for the last nearly half a century that, before fetal viability, the woman has an absolute right to terminate a pregnancy. You can make her jump through all kinds of hoops. You can make her stand on her head and wait forty-eight hours and all that kind of stuff, but at the end of the day you can’t stop her from access to a legal abortion. If the Court upholds the Mississippi case and somehow tries to fool the public into thinking that that is not a functional overturning of Roe, it’s going to be incumbent on those of us who spend our time trying to understand the Court to say to the public, “Watch what they do, not what they say, and Roe functionally has been overturned.”

Do I think they’ll do that? Yes, I do think so, because there’s no other reason they would’ve taken the Mississippi case. There’s no conflict in the circuit courts, obviously, because every federal court to have been presented with a law like this, and there have been many of them, has said, “It’s unconstitutional. There’s nothing we can do about it.” The deeply anti-abortion, conservative Fifth Circuit upheld the decision to strike down the Mississippi law, and it came up to the Court. The state appealed. The Court kicked it around, as I chronicle in the book, for months, before finally granting it in May, and that can have no other purpose than an anti-abortion agenda.

It’s often said that Brett Kavanaugh is the Trump Justice most sensitive to élite opinion. Is that a sense that you’ve gotten reporting around the Court?

I don’t really see it to the extent that other people seem to. I think what distinguishes Kavanaugh from the others is he feels the need to explain himself, but, at the end of the day, he almost always votes with the conservatives. I’ll go back a couple of years, to when he was first on the Court. The Fifth Circuit had upheld an anti-abortion law in Louisiana that was going to have the effect of leaving the state of Louisiana with one abortion provider. The clinic came in and said, “We’re going to file an appeal, but in the meantime we need a stay to keep this law from going into effect.” The Court granted a stay by a vote of 5–4. Kavanaugh was in dissent, and he wrote and he tried to explain himself. He said, “You know, we should just give these doctors a little more time to get the hospital-admitting privileges that the law requires them to have.” Well, if he had read the lower-court opinion, he would’ve learned that some of these doctors have been trying to get admitting privileges for years.

In other words, he would’ve let the law take effect, but he tries to cover it by saying, “Oh, I’m being very reasonable. I just want to give them a little more time.” That I think was classic Brett Kavanaugh. What counts is not what he says; it’s what he does. He would’ve allowed the law to come into effect.

It does seem to me that Justice John Roberts, however conservative he may be, has done some things that have been surprising to Court watchers, and that either he’s in a slightly different place than he was in when he first became Chief Justice or he’s intensely concerned with public opinion and the legacy of the Court. How do you understand Justice Roberts’s current role?

He’s the one whose name is on the door, right? It’s the Roberts Court. The institutional welfare of the Court has to be his concern. His mentor, William Rehnquist, changed quite a lot when, after fourteen years as an Associate Justice, he became Chief Justice, in 1986. He never changed his basic orientation, which was extremely conservative, but we find him writing the opinion that upholds Miranda, a precedent that he had been quite decidedly critical of for years. It’s not surprising that Roberts has the interests of the Court at hand. I think he’s in a tough spot. He certainly has distinguished himself from the other Republican-appointed Justices on the Court.

Roberts famously said that all a judge does is call balls and strikes, which is interesting in light of the fact that he does seem concerned with how the Court is viewed. He also famously came up with a compromise about the Affordable Care Act, which was reported by the CNN legal analyst Joan Biskupic and others as being possibly a political decision. He’s thinking about the Court as an actor and trying to make decisions based on that. Do you think that’s an appropriate role for the Chief Justice?

Well, I think the way you posit it actually is an overstatement. Because, if you look at something like Shelby County v. Holder, the decision that cut the heart out of the Voting Rights Act, if you look at what he’s doing on the cases that enable public money to be channelled to religious schools, on the issues that he really cares about doctrinally he’s not giving any quarter. He’s doing what he thinks the law requires. So I think he’s not in some kind of squishy middle on the Court. He’s perhaps responding to some of the cases that are coming to the Court now as a traditional Republican-appointed Justice. The three Affordable Care Act cases that have come up for the Court have fundamentally been crazy claims, off-the-wall claims. What’s shocking is not that Roberts voted to preserve the law but that anybody swallowed what the anti-Affordable Care Act people were selling. So I’m not really on board with the notion that he’s been trimming his sails to any major degree.

You talked near the end of your book about the cases that came up around the election, with Trump hoping that his appointed Justices would overturn Biden’s win. Did the Court’s unwillingness to do so give you any hope about how it will deal with future election controversies?

What we saw was, in a sense, that the Alito faction on the Court who did want to weigh in on this ran out of time. I think the cases were handled so badly by the Trump lawyers that they gave nothing to those on the Court who might have been sympathetic, for instance on the notion that state courts can’t change voting procedure. That was the claim in the Pennsylvania case that got a few votes. Next time, if the cases are better presented, I’m not a hundred per cent confident that they may not get somewhere. So I think all we learn is that, in the boiling cauldron of last-minute litigation that was the 2020 election, they didn’t make headway.

What areas of American life do you think the Court is most likely to transform over the next several years?

I think there’s certainly a fair chance that the Court will get rid of affirmative action. They’ve come close. They never quite could do it when Anthony Kennedy was on the Court, but he’s not there anymore. So that would be a major one. On religion, the Court’s going to hear a case from Maine that has not gotten much attention but really deserves it. I think it will open the floodgates to channelling public money directly to religious schools. That was a battle that was fought to a different conclusion decades ago, under what used to be the heading of parochial aid. So I think race and religion are the two major areas that this Court is going to put its very different stamp on.

What did you think about Justice Ginsburg’s decision to not retire at the time, and what do you think about it now?

Well, she placed a bad bet. I think that’s the worst you can say. In the run-up to the 2016 election, who among us actually thought that Hillary Clinton was not going to get elected? So hindsight is great. But I think Ginsburg assumed that from 2017 on there’d be a friendly President in the White House who could be trusted to find a good successor for her. And, when that didn’t happen, she hung on. And had she been able to hang on another four months, President Biden would have named her successor. So, it’s easy to criticize, and some of the criticism is justified. But I’ve satisfied myself that we were better off with her than without her those last seven or eight years, when the male professoriate was telling her every Monday and Thursday to retire. We wouldn’t have had the R.B.G. that we came to know. We wouldn’t have had the “Notorious R.B.G.” who was the truthteller and the caller-outer in these last years. And I think we would’ve been worse off for that.

But we might have kept Roe v. Wade going forward.

Well, I’m not too sure about that. Because even now you can plausibly count six votes to overturn Roe. With Ginsburg still on the Court, you could plausibly have counted five.

You never know. Regardless, does it not at least suggest something about what Justice Breyer should do?

Well, I think people who’ve been telling Breyer to retire have overplayed their hand, because what really motivates him is to do everything he can to keep the Court from looking political. And, had he retired because there were posters up all over Washington saying “Breyer Retire,” it would’ve exactly played into that narrative.

You write very persuasively and passionately about all the ways in which the Court is politicized. You talk a lot about the Federalist Society in your book, and we’ve been talking about some of the issues around court politicization today. But it seems to me that people like yourself, people in the legal world, don’t want to take this extra step of saying, “Of course the Court is political. Therefore, of course Justice Breyer should retire when a Democrat can appoint his successor.” What am I missing?

I was explaining to you what I understand Breyer’s own thinking is.

I thought you were defending it a little bit since you seemed to defend it in the Ginsburg case.

You know, do I personally think Breyer should retire? I mean, frankly, I think that would be presumptuous of me. I think it’s a highly personal decision. I’m not going to presume to tell him what to do.

Looking at it from Breyer’s point of view, and I haven’t spoken to the man about this at all, but he just had a very successful term. He wrote some of the major opinions. And I think it’s a very hard decision for an individual, in part because it’s a very small group. They are very attentive to what happens to each one as they leave the Court. And people who have watched this have observed, and I’ve observed, that when a Justice retires they decline very fast. I guess I’m being empathetic toward the individuals.

Maybe the question is, do we want Supreme Court Justices to think of themselves as political actors?

It’s not a simple yes or no. It’s become impossible for anybody to say the Court is not a political actor. I mean, it obviously is. It’s in the thick of our politics. I’m certainly not arguing to the contrary. Then the next step, as you say, is, well, what should each individual Justice think about that? And should they tailor the arc of their careers with that in mind? And I just think that’s a very personal decision for each one.

Do you think it would be problematic in a very polarized country for Justices of one ideological bent to think of themselves as political actors and make sure they only retire when a President of the same party is in office, and Justices of the other political bent to not make that choice?

Yes.


More New Yorker Conversations