Missed our roundtable about the Court’s latest decisions? Catch up here and on our Twitter @MsMagazine.
This week, Michele Goodwin at Ms. hosted six law and women’s rights experts at the University of California Irvine (UCI) School of Law to discuss the Supreme Court’s latest year of impactful rulings—including: Dobbs v. Jackson Women’s Health Organization, which overturned 49-year-old federal abortion protections in Roe v. Wade; New York State Rifle & Pistol Association v. Bruen, which struck down a 111-year-old state protection requiring gun owners to show “proper cause” for concealed carry licenses; West Virginia v. EPA, which ruled the agency has no executive jurisdiction to regulate certain greenhouse gas emissions; and more.
In addition to Goodwin, the panel of experts included:
- Aziza Ahmed, professor of law, Boston University School of Law
- Erwin Chemerinsky, dean, Berkeley Law
- Mary Anne Franks, professor of law and Michael R. Klein distinguished scholar chair, University of Miami School of Law; author, The Cult of the Constitution
- Regina Mahone, The Nation
- Mark Joseph Stern, Slate Magazine
- Mary Ziegler, professor of law, UC Davis School of Law
After a term unlike any other in nearly 50 years, U.S. confidence in the Supreme Court has sunk to a historic low, just 25 percent. Many of the Court’s recent rulings reveal an aversion to equity and legal precedent—leaving many to wonder about the Court’s commitment to equality, inclusion and nondiscrimination.
Watch the conversation below, or keep reading for a recap.
At the July 6 event, leading experts in constitutional law, criminal justice, women’s rights, administrative law, the Second Amendment, and free speech emphasized the unprecedented conservatism of the Court and the huge impact of this term’s decisions on Americans.
“This Court is so fundamentally different than anything we’ve ever seen.”—Mary Ziegler
“The writing has been on the wall for a long time. … This term was in one sense not a surprise, but it was shocking to see decision after decision come down in a conservative way.”—Erwin Chemerinsky
The speakers called out the Court’s conservative justices for their political cynicism in accepting cases regardless of precedent or applicability—simply because the cases bring up issues these justices would like to see changed.
“We’re seeing constitutional fundamentalism on this really deep level. The rules, and the text, and the history. … they care about it if it lets them win.”—Mary Anne Franks
“The problem is that words are inherently ambiguous. … [The conservative majority] find the ‘plain meaning’ to confirm their original bias.”—Erwin Chemerinsky
Such cherry-picked cases include Dobbs, according to Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan’s artful dissent, which accused the majority of overruling Roe and Casey “for one and only one reason: because it has always despised them, and now it has the votes to discard them.”
Slate’s Mark Joseph Stern raised the critique that Supreme Court justices are appointed, not elected, and serve lifelong terms—giving them immense power for decades. “The fundamental irony of these decisions is that the conservative justices will come out and say we are defenders of democracy,” he said. “They say, you know who should be making these decisions? Unelected judges with no term limits and no constituents.”
“The Supreme Court’s supermajority hates government,” he continued, “especially a government that works for the people.”
Bombshell End-of-Term Supreme Court Decisions
The Supreme Court is known to issue its most controversial cases right before its summer recess, after months of closed-door deliberations. The six experts touched on specific cases handed down this month.
West Virginia v. EPA
On West Virginia v. EPA and its impact on future attempts to combat climate change:
“The Supreme Court has opened the door to challenges to all aspects of the administrative state… I think you have to see this as part of a pro-business agenda on the part of the Roberts court.”—Erwin Chemerinsky
“Federal statutes do not enforce themselves. We need agencies to do that.”
—Mark Joseph Stern
New York State Rifle & Pistol Association, Inc. v. Bruen
On Bruen and Second Amendment rights:
“[Bruen] is stunning because it gives the Second Amendment greater protection than any amendment in the constitution.”—Erwin Chemerinsky
Dobbs v. Jackson Women’s Health Organization
On Dobbs and its implications for marginalized women:
“The dissent says very clearly, if we’re going to go back to the 18th century, you have to remember who was in power then, and who those laws were benefiting … If we continue to go back to that, that will be the power structure we’re reproducing.”—Aziza Ahmed
“Roe was always about allowing the doctors to make decisions about abortions. … It was never the case that the person who was carrying the pregnancy got to decide.”—Regina Mahone
Many panelists warned Dobbs is just the beginning of a slew of cases gutting reproductive rights.
Chemerinsky noted that we will likely see cases debating contraceptive care, in vitro fertilization and the rights of women traveling to receive abortion care outside of home states that have banned it. He referenced the majority opinion that rejected the idea of privacy previously found in the 14th Amendment and the fact that Justice Thomas in his concurring decision named other cases founded upon this right, including those concerning contraception and same-sex marriage, as possibilities for re-examination.
“The implications are frightening,” he said. “Once the Court pulls this thread from the fabric, I don’t know how the rest of it can stand.”
Even though Justice Alito, in his majority opinion in Dobbs, separated abortion from other privacy rights such as same-sex marriage, Chemerinsky says this promise to leave those settled precedents alone is nothing to hang our hats on: “‘Just trust me’ by Justice Alito rings hollow.”
The Future of the Court
On gun rights and abortion rights, Mary Anne Franks pointed out the hypocrisy surrounding fundamental rights to “self-defense” in the Bruen case in the wake of Roe‘s fall.
“For so many women, especially Black women, pregnancy is life-threatening. But women don’t have that right [to self defense] at all… the Court is signaling more than ever before who counts and who doesn’t.”
“It needs to be clear that the Court is saying who lives, who dies, who gets to defend themselves, who doesn’t.”
On the future of the Court:
“This is not the culmination of anything. This is the start of a conservative revolution in America… The Court is laying the ground work for more expansive decisions.”—Mark Joseph Stern
Chemerinsky disagreed, partially:
“I don’t think this is the beginning. … the Court has been conservative for some time. What’s different now is that the Court is more conservative than it’s ever been. These five or six conservative justices are just getting started.”
The panelists wrapped up the conversation with words of inspiration and action.
“The pain of defeat can generate something really beautiful and important.”—Mary Zeigler
“It’s going to be all of us who get us free. We all have to continue to fight — it’s the only way through this.”—Regina Mahone
Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.