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Capital Journal
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Good morning from the WSJ Washington Bureau. We produce this newsletter each weekday to deliver exclusive insights and analysis from our reporting team in Washington. Sign up.
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Three Questions for WSJ Supreme Court Correspondent Jess Bravin
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Q. You wrote that the Supreme Court's term signaled a decisive turn away from the liberal judicial views of the 20th century. When the court's term ended last year you wrote about a tilt toward the conservative wing, but with some fissures, often led by Chief Justice Roberts. Do developments this term suggest that the conservative bloc's foundation will remain a force for years to come?
Jess Bravin: This past term, a six-justice majority put new precedents on the books reflecting some of the most deeply held beliefs of the conservative legal movement, including skepticism of regulatory powers the federal government has exercised since the New Deal era and a conviction that religious expression must often take precedence over secular interests in American public life. The court expanded Second Amendment gun rights in the face of mass shootings and eliminated the constitutional protection for abortion in early pregnancy first recognized in 1973. The majority made decisions regardless of their popularity; most Americans wanted Roe v. Wade reaffirmed, according to polls, and Congress
agreed on bipartisan gun legislation in response to the killings at the Tops supermarket in Buffalo, N.Y., and Robb Elementary School in Uvalde, Texas.
Traditionally, courts take various elements into account when they apply the law—not just getting the answer precisely right in an academic sense, but also such factors as society’s reliance on current practices, the public interests reflected by legislation, and maintaining stability within the legal system. The 2021-22 term shows that for the Supreme Court’s current majority, those are secondary to implementing what it believes is the correct understanding of constitutional and statutory texts.
To be sure, there are differences within the conservative wing. Chief Justice John Roberts, for instance, didn’t vote to overrule Roe v. Wade, suggesting it would be more prudent to pare back abortion rights this term rather than eliminate them altogether. And several lower-tier cases produced unlikely coalitions; for instance, Justice Neil Gorsuch, an impassioned advocate for the rights of American Indian tribes, was joined by the three liberal justices in dissent from the other conservatives when they curtailed native sovereignty in eastern Oklahoma.
But if the majority held together to overrule Roe, it’s hard to imagine what would fracture the conservatives as they confront new legal questions or revisit what they believe are errors made by the justices who preceded them.
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▶️Video: WSJ’s Jennifer Calfas explains where abortion access in the U.S. stands after the Supreme Court overturned Roe v. Wade. PHOOT ILLUSTRATION: LAURA KAMMERMANN
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Q. The Supreme Court's decision overturning Roe v. Wade, which established a constitutional right to an abortion, included several justices who had described that 1973 decision as settled law during their Senate confirmation hearings. What impact might that shift have on how confirmation hearings could be perceived in the future?
Jess Bravin: When a nominee calls a case settled law, that simply means there’s a clear precedent binding on lower courts. It doesn’t signify agreement with it—or a promise to uphold it if seated on the Supreme Court. If a senator didn’t understand that, that’s on her.
By custom, judicial nominees will not say how they would rule on a case, whether pending or hypothetical. But there should have been little doubt that Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett would vote to overrule Roe. As a presidential candidate, Donald Trump said he would select nominees specifically for that purpose. “If we put another two or perhaps three justices, that will happen. That will happen automatically,” he said at an October 2016 presidential debate.
Supreme Court confirmation hearings let the public take a look at the nominee and get a sense of his or her public face. But for recent vacancies, the hearings’ main purpose was to provide senators on the Judiciary Committee a platform for their own agendas, with the nominee serving as a sounding board, if not a punching bag. With the exception of Justice Kavanaugh’s nomination, which was jolted by an allegation of personal misconduct that he vigorously denied, there’s been little suspense over the outcome of confirmation hearings.
In large part, that’s been because every hearing since 1993 has seen a president and Senate majority of the same party, so the nominee hasn’t had to win votes from the minority; no Democrats voted for Justice Barrett. Should Republicans take the Senate in November’s midterm elections, another vacancy under President Biden would enter uncharted waters.
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Q. The May leak of the draft decision in the abortion case, Dobbs v. Jackson Women's Health Organization, was decried by members of the court as a betrayal. Is that breach of protocol likely to signal a change in how the justices have worked with each other?
Jess Bravin: The justices typically have portrayed the court as the picture of collegiality, insisting their differences are philosophical, not personal. In January, following reports of discord over Justice Gorsuch’s refusal to wear a mask during oral arguments, he and Justice Sonia Sotomayor issued a statement insisting things were peachy: “While we may sometimes disagree about the law, we are warm colleagues and friends,” the statement said.
The May leak scratched that veneer. Chief Justice Roberts ordered an internal investigation that has focused on court employees including law clerks, who were asked to turn over cellphone data. Several obtained legal counsel.
Traditionally, the justices have shared draft opinions with each other, even with those on the other side, as part of the deliberative process that may sharpen arguments or sometimes even lead to a change in position. That custom must be under strain.
Justice Clarence Thomas said as much during a public appearance in May: “That trust or that belief is gone forever. And when you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally, you begin to look over your shoulder,” he said. “It’s like kind of an infidelity in that you can explain it, but you can’t undo it.”
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A solid conservative majority on the Supreme Court issued several consequential rulings that reflected their originalist view of the Constitution. PHOTO: KEVIN DIETSCH/GETTY IMAGES
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The Supreme Court's conservative majority made its mark during the term, with decisions on abortion, guns and religion's place in schools that reflected their originalist views of the Constitution.
Some notable opinions:
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Dobbs v. Jackson Women’s Health Organization
The Supreme Court eliminated the constitutional right to an abortion, overruling the 1973 Roe v. Wade decision and leaving the question of abortion’s legality to the states. The court’s 6-3 decision on June 24 upheld a law from Mississippi that bans abortion after 15 weeks of pregnancy. However, the court ruled 5-4 on the broader question of whether to overrule Roe, which Chief Justice
John Roberts writing in a concurring opinion that he didn’t support rescinding the right to an abortion altogether.
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New York State Rifle & Pistol Association Inc. v. Bruen
The high court on June 23 struck down New York state’s system for issuing concealed-weapons permits, ruling in a 6-3 decision that the century-old law requiring that applicants demonstrate “proper cause” and “good moral character” violates the Second Amendment. The decision marks the widest expansion of gun rights since 2010, when the court applied nationwide a 2008 ruling establishing an individual right of armed self-defense within the home.
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ENVIRONMENTAL RULE-MAKING
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West Virginia v. Environmental Protection Agency
The court issued another 6-3 decision limiting the power of regulatory agencies within the federal government, saying the Environmental Protection Agency overstepped its authority in 2015 when it tried to limit greenhouse-gas emissions from power plants, known as the Clean Power Plan.
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Kennedy v. Bremerton School District
Siding with a Washington state high-school football coach who knelt in prayer at the 50-yard line, the court ruled 6-3 on June 27 that a school district cannot bar him from publicly exercising his faith on the field after the game.
Carson v. Makin
In a 6-3 decision, the court ruled on June 21 that religious schools can’t be excluded from a Maine program that pays private-school tuition for students in areas that lack public schools.
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PHOTO: GERRY BROOME /ASSOCIATED PRESS
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Among the likely marquee cases that the Supreme Court agreed to consider next term is a major election-law case out of North Carolina that will examine whether state lawmakers have the authority to adopt voting rules for federal elections without oversight by state courts.
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Another involves a challenge to affirmative action in college admissions, a practice the court approved in 1978 and repeatedly has upheld, most recently by a 4-3 vote in 2016.
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People gathered outside the Supreme Court building May 2 after a leaked draft opinion indicated the court was set to overturn Roe v. Wade. PHOTO: ALEX BRANDON/ASSOCIATED PRESS
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The Supreme Court’s marshal is investigating the May leak of the draft opinion in the abortion case, which Chief Justice Roberts condemned as a “betrayal of the confidences of the Court.” The court said then that the leaked decision didn’t necessarily reflect its final position, but the final opinion was nearly identical to Justice Samuel Alito’s initial draft.
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▶️Video: Supreme Court Justice Stephen Breyer on Jan. 27 announced his plan to retire after serving more than two decades on the court. PHOTO: KEVIN LAMARQUE/REUTERS
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The court is going through a generational change, as Justice Stephen Breyer retired Thursday after 27 years on the Supreme Court. The 83-year-old justice in January announced his plan to step down, giving President Biden an opportunity to shore up the court’s liberal wing and deliver on his promise to nominate the court’s first Black woman.
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▶️Video: Ketanji Brown Jackson was sworn in as an associate justice on the Supreme Court on Thursday. PHOTO: U.S. SUPREME COURT
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Ketanji Brown Jackson was sworn in as the 116th associate justice of the Supreme Court on Thursday, after Chief Justice Roberts and Justice Breyer administered oaths of office shortly after noon. She is the first Black female justice in the court’s history, confirmed in April by 53-47 Senate vote. At 51 years old, she all but completes the court's generational turnover—Justice Clarence Thomas, 74, is the only justice remaining who was on the court in the 20th century.
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Justice Brett Kavanaugh leaving his Maryland home. PHOTO: JOSHUA ROBERTS/REUTERS
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An armed man was arrested near Justice Brett Kavanaugh’s home in June and charged with attempting to assassinate a federal judge after making threats against the justice.
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