(Posted July 8, 2022) My long-time readers know that for several years now, I’ve compiled the David-Goliath Index, classifying certain decisions from the Supreme Court of Virginia as favoring either the little guy or the big guy. It isn’t an exact science; there’s often a bit of subjective interpretation involved, so I know not to get too cocky when describing my findings. Even so, I’ve noticed a clear rightward shift in the court in the past decade; the years-long trend in the index is unmistakable. Goliath used to win about 50% of the time; now he wins four out of five appeals here.

I learned recently that someone with more access to statistics than I do has been keeping tabs on the Supreme Court of the United States in a similar vein. Last weekend, I saw an article in The New York Times from the veteran Supreme Court correspondent Adam Liptak. He’s one of a handful of courtwatchers whose stories always catch my eye; I trust his perspective because of how long he’s been doing it, and because of the quality of the writing I see.

Liptak’s story, posted just two days after the end of a highly consequential SCOTUS term, reports that the new six-member conservative majority has steered the Court rightward and lit the afterburners. Citing analysis by two professors, Andrew Martin of Washington University and Kevin Quinn at the University of Michigan, Liptak reports that OT ‘21 was one of only four terms in the past century in which divided opinions tilted to the right more than 70% of the time. The Court’s three liberals, rarely joined by one of the six conservatives, could only post dissents filled with dire warnings of what was to come.

The Martin-Quinn score, as the paper calls it, for the term just completed was 73.8%. This means that nearly three of every four split decisions came down on the conservative side. That eclipsed the 73.5% for OT ‘05, Chief Justice Roberts’s first year on the Court. For historical context, the only previous times the Court exceeded a 70% annual rating were long, long ago, in the Lochner era, when the Court twice handed down conservative decisions above 70% — one of those comfortably above 80%. As SCOTUS jurisprudence goes, we in the 21st Century are in historically conservative territory.

Whether this development is good or bad depends on your own political perspective. If you’re a Republican, you’re cheering the majority that Justice Sotomayor called a “restless and newly constituted court.” This came in her June 8 dissent in Egbert v. Boule, the latest SCOTUS ruling to whittle away at plaintiffs’ rights in Bivens actions. The passage was a warning of rulings to come.

And come they did. In the most prominent example, Dobbs v. Jackson Women’s Health, the Court’s five most conservative justices famously reversed Roe v. Wade in a case where neither party asked the Court to do that. Five conservative justices simply picked up the appeal and took it where they wanted to go. The Chief Justice tried to steer a more moderate course, but could recruit no one at all to join him.

Liptak’s story notes that many highly consequential decisions on OT ‘21 came down to 6-3 votes, with the liberals always in the minority. “Those cases included ones on abortion, gun rights, climate change, school prayer, government aid to religious schools, the death penalty, campaign finance and limits on suits against government officials.”

Plenty of courtwatchers are taking note. Kelsey Reichmann of Courthouse News Service reported on June 7 that before Justice Kavanaugh’s arrival, the Court’s rulings were “mostly in line with average American attitudes.” That has plainly changed; now, the story reports, the Court’s philosophical center is far to the right of the American center. This, Reichmann predicts, may enhance calls for court reforms such as adding more justices.

Others have predicted different consequences. The St. Louis Post-Dispatch’s editorial board warned of what it saw as the “breakdown of U.S. Supreme Court legitimacy” due to its perceived lack of respect for historical precedent. The board forecast a time in the near future where states simply defy SCOTUS rulings, the way some states are turning their backs on federal legislative mandates.

It’s worth noting that both of these views hit the cyber-airwaves well before the Court’s most controversial decisions arrived in the last few days of June. The same is true for an early June Gallup survey reflecting that a mere 25% of Americans have confidence in the Court. I haven’t seen a post-Dobbs poll, but I suspect that one is already underway.

Justice Alito’s opinion of the Court in Dobbs notes that the justices can’t succumb to the pressures of public opinion in making their decisions. Agreed, to a point. The Court has to make unpopular rulings from time to time in the interest of a robust and vibrant body of law. But when the rulings stray too far from the mainstream public view — for example, some 70-80% of Americans supported the Roe decision — the Court then risks the kind of legitimacy crisis that the Post-Dispatch foretold.

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Let’s examine just one thread that runs through a number of these significant rulings: religion. As noted in Kennedy v. Bremerton School District, there’s “play in the joints” between the two Religion Clauses in the First Amendment. The government can’t establish religion, and can’t prohibit its free exercise. Thomas Jefferson first wrote of a “wall of separation” between church and state, and generations of Americans have accepted that separation as a good thing.

Not so much anymore, at least in the Court’s perspective. Over the past several years, the Free Exercise Clause has become dominant, to the point that the Establishment Clause is a mere gossamer now. Recent rulings have legitimized overtly religious prayer to begin meetings of a town council in New York, and allowed prominent display of a huge symbol of one of the world’s major religions — Christianity, of course — on public property in Maryland.

This past term, the Court ruled that if a state provides financial support to secular private schools, it must provide support to religious ones, upon pain of a constitutional violation. That is, avoiding an Establishment violation is now a Free Exercise violation. Forcing citizens to pay for someone else’s religious education would have left the Founders aghast, but not this Court.

In the same term, the Court approved highly visible school prayer by a public high school’s football coach, effectively holding that his Free Exercise rights are more important than the Establishment rights of everyone else. Perhaps the justices don’t recall the power of peer pressure from their high school days, but there’s a reason why we enforce the Establishment Clause keenly when it comes to juveniles.

Religion underlies other rulings in a less obvious way. The abortion debate features, at its core, a question for which there can be no objective answer: When does an individual human life begin? After all, if life begins at conception, then the state should be able to intervene to prevent what is effectively homicide, the termination of a life that has already begun. But if it begins at birth, then the state has no right to tell a woman what to do with her body. Because this question can have no objective answer, many people turn to their religions for subjective guidance. Justice Alito acknowledges as much when, in the first sentence of the Dobbs opinion, he observes that abortion “presents a profound moral issue ….”

In Roe, 49 years ago, the Court tried to steer a middle course between the views embraced in Christianity — life begins at conception — and those held by other faiths and many nonbelievers — at birth — by holding that states may proscribe abortions after fetal viability, but not before. This was as close to a secular ruling as possible, in that it drew the line based on practicalities instead of religious beliefs. Of the seven votes that constituted the Roe majority, five came from Republican appointees. Today’s cadre of Republican appointees finds its predecessors’ conclusion “egregiously wrong,” and for the first time rescinds a constitutional right that the Court had once announced.

It wasn’t always like this. In 1879, the Supreme Court ruled that Mormons didn’t have a Free Exercise right to ignore a state law banning polygamy. A century later, in 1990, it rejected a Free Exercise claim by Native Americans who wanted to use peyote, a controlled substance, in their religious ceremonies. In those days, Free Exercise had limits, and in cases of conflict between the two, individual Free Exercise Clause claims yielded to the public’s greater Establishment Clause guaranty.

My best guess is that the current Supreme Court would rule the opposite way on both these cases. That’s how powerful the Free Exercise Clause has become. The Establishment Clause is but an empty shell in comparison. (Side note: Justice Thomas has publicly taken the position that the Establishment Clause binds only Congress, not the states. So while Congress may not be able to establish an official United States religion, in his view any state can freely declare an official state religion. The Fourteenth Amendment, which extends the protections in the Bill of Rights to cover state as well as federal actions, can only look on in silent protest. So do legions of religious minorities.)

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Where are we headed next? Justice Sotomayor’s warning about the “restless and newly constituted court” foretold the next seven weeks’ worth of momentous decisions, but the end of the term doesn’t mean the Court’s heading will change. Yes, we have a new justice, but substituting Justice Jackson for Justice Breyer won’t affect the Court’s ideological center; not one bit.

The fulcrum justice was once Justice Kennedy. I mused in those days that he was the most powerful man in America, because on a closely divided Court, his vote determined what American law was. His retirement and replacement with the more-conservative Justice Kavanaugh meant that the Chief was in the Court’s center, figuratively as well as literally.

Justice Ginsburg’s death and the investiture of Justice Barrett changed all that, of course. The solidly conservative Roberts now finds himself to the left of the Court’s philosophical center. Kavanaugh is probably the fulcrum justice now, and he’s a more reliably conservative vote than is the Chief. We see occasional exceptions to the left-to-right lineup; the easiest to list is probably Justice Gorsuch’s writings in the Native American reservations cases, where he votes with the liberals. But there are six firmly conservative justices who can now rule without regard for the concerns of a three-justice minority.

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For a full answer to the question of where we’re likely headed, I won’t be able to keep my personal opinions out of the discussion. If you disagree with these, I’ll understand. We’ll still be friends, I hope.

Into this discussion I bring the perspective of those among us who greatly esteem personal privacy. I know that modern commentators insist that the old-school concept of privacy is obsolete because too many actors, governmental and otherwise, have too many ways to discover all of our deep, dark secrets. Maybe so; but I preserve the notion that I can at least minimize that intrusion.

Privacy is one of the core values of libertarianism, which Republicans once embraced but have had to discard because of the party’s uneasy coalition with the religious Right. It’s at the core of several important Supreme Court doctrines, usually stemming from the legal concept of substantive due process.

In November 2020, I wrote an essay about that doctrine, in which essay I listed several cherished modern rights that depend on SDP and privacy — the freedom to love and to marry whomever you wish; the freedom to send children to private school; the freedom of families to live together, even when they contain three generations under one roof. In past decisions, the Supreme Court has protected each of these rights, specifically because of a fundamental right to privacy, a crop grown in the fertile field of substantive due process.

As I noted in that essay, Justice Steve McCullough of the SCV had posted a concurrence in which he sharply criticized the substantive component of due process, including a reference to its “shabby and disorganized baggage train.” No surprise here: Don’t expect the SCV justices to recognize a substantive component to the Due Process Clause in the Constitution of Virginia. But that means no constitutional guaranty of privacy here. And I find that concept unpalatable. (The word unpalatable there was a euphemism; my feelings on this point are stronger than that.)

I accordingly support substantive due process, enthusiastically. That means that I supported Roe and its sequel, Casey. I believe that, at least until fetal viability, the decision whether to have an abortion should be between a woman and her doctor, not between a woman and her government. I don’t believe that the government has any right to tell Americans what they can and cannot do in areas such as reproductive health, marriage, and the right to die. (Yes, I have a living will, thanks to Cruzan v. Director from 1990.) The government should stay out of private decisions in doctors’ offices and keep its hands off what goes on in private homes between consenting adults. Third-world surveillance states engage in that kind of prying; but not the greatest constitutional democratic republic that the world has known.

So, which rights might the “restless and newly constituted Court” target next? It isn’t a secret; Justice Thomas said the quiet part out loud in his Dobbs concurrence. He ticked off same-sex marriage and private homosexual conduct and even the right to use contraception as wrongly recognized rights. Why aren’t living wills and private-school choice on that list? They, too, sprouted from the concept of substantive due process.

Justice Alito’s opinion of the Court seeks to defuse this bomb with a promise. Those other rights aren’t in jeopardy, he assures us; only abortion. Only that one; because this is the only one that ends a human life. (He’s forgetting Cruzan, of course; a living will allows a patient to refuse life-prolonging medical care and thereby bring on death, when the patient would still be a vegetable if the care succeeded.) Only this one right will vanish, and the others will remain, protected by this Court.

I believe two things about this promise. First, I believe that it is false. Second, I believe that Alito knew that it was false when he wrote it. You cannot execute substantive due process by a five-justice firing squad, and then insist that rights that expressly depend on it will magically retain vitality. One should never underestimate the creativity of lawyers, and I find the odds overwhelming that even now, some lawyers are musing about how to weaponize the fiery rhetoric in Dobbs, to launch an attack on the SDP right they most abhor. The Court’s decisions this term, including its disdain for stare decisis, portend that some or even most of those challenges will succeed, despite that promise.

No, I’m not truly capable of reading Justice Alito’s mind. This is just what I believe. I perceive that my taking his promise at face value would make me the equivalent of Sens. Collins and Murkowski, who blithely accepted assurances from Gorsuch and Kavanaugh that Roe is “settled law.” (Here’s what I see as the fingers-crossed-behind-my-back explanation for that: Yes, Roe was settled law. And lower-court judges — which Gorsuch and Kavanaugh both were at the time of their confirmation hearings — aren’t free to overrule settled law; they have to respect and adhere to SCOTUS’s rulings, no matter what those judges’ views are. All that changes when you reach One First Street and can freely vote to overturn SCOTUS precedent; at that point, even settled law is fair game for reversal. But the two nominees didn’t tell the senators that last part in the confirmation hearings.)

The ultimate question, in the event the Court starts wiping these other rights off the jurisprudential map, is the one posited by the Post-Dispatch: How low can the Court’s institutional legitimacy sink before consequences arise that we, as lawyers in a nation of laws, will find horrifying?