There may still be disputes in the United States Congress about global warming, but across the street the Supreme Court this week offered definitive evidence of climate change of a different sort.
The justices who sit on the Supreme Court are all aware of the famous maxim of respected 20th-century American constitutional law scholar Paul Freund, remembered for having said that members of the high court “should never be influenced by the weather of the day but inevitably they will be influenced by the climate of the era.”
This week they acted on that axiom, displaying genuine warming among the justices, demonstrating their awareness that the climate of the era has changed and acknowledging that the court itself is at an important inflection point.
Four conservative justices, including Chief Justice John Roberts and two appointed by Donald Trump, joined three liberals in affirming the Obamacare health plan for the third time, almost certainly ending further court challenges to the landmark 2010 law, writing into the U.S. canon the right to health care and opening the door for President Joe Biden and the Democratic congressional majority to expand the plan’s coverage.
And in a separate ruling, the justices skirted the culture wars swirling outside their chambers with a unanimous, narrow and technical ruling that accommodates religious institutions’ views on sex and gender matters even as it calls for tolerance toward the LGBTQ community.
With these whispers in decisions issued in Washington, the justices shouted across the country: though we have different ideologies, we can work together, we do not need to be tinkered with.
“They read the papers – and they are part of the world,” said Daniel Urman, a Northeastern University constitutional law specialist. “They know that court’s credibility is what really matters, that its legitimacy is at stake, and they know that the court cannot be too far out of step. These decisions show us that the words of the Constitution haven’t changed but society and social views have changed.”
This adjustment – an analogue of the high court’s shifts on New Deal legislation in the Franklin Roosevelt era, known as “the switch in time that saved nine” – comes at a consequential moment for the institution.
Liberal Democrats, troubled that the nine-member court now has six conservatives, have raised the possibility of expanding the court to adjust its ideological balance. Mr. Biden studiously avoided taking a position on the issue during the 2020 campaign but later created a presidential commission of 36 legal scholars, retired judges and lawyers to examine, among other items, adding justices.
Contemporary proposals to expand the court are an echo of the notion Roosevelt floated in 1937, when he sought to appoint as many as six additional justices for every justice who had served for a decade and was older than 70 years and six months. That proposal, known as the “court-packing plan,” became moot after two justices changed their views of New Deal legislation.
This week’s Supreme Court decisions may have leached some of the passion from those who want to mount a similar expansion effort.
Meanwhile, as the court’s 2020-2021 session winds down for the summer, new attention is being focused on a single jurist, Stephen Breyer, nominated in 1994 by Democratic president Bill Clinton to fill the vacancy created by the retirement of Harry Blackmun, who was nominated in 1970 by Republican president Richard Nixon.
Here the ghost of Ruth Bader Ginsburg lingers above the court.
Justice Ginsburg, perhaps the most liberal member of the court when she died last autumn, was replaced by a conservative, Amy Coney Barrett, who was jammed onto the bench only days before an election by a president who would not be granted a second term and confirmed by a Senate that was soon to turn from GOP control to narrow Democratic dominance.
Now, there are progressives who want Justice Breyer to step down next month so a liberal can be confirmed to replace him.
Today, Democratic power in a Senate split 50-50 is assured only by the presence of Vice-President Kamala Harris, who has the prerogative of breaking a tie. If only one Democratic lawmaker dies or resigns, or if the Democratic representation in the chamber is diminished in next year’s midterm congressional elections, the Republicans will reassume power and could block any Biden court appointment. Just this week, former Senate majority leader Mitch McConnell of Kentucky said that if he resumed that role in a Republican majority he might not even permit a Biden nomination to come to a floor vote.
Justice Breyer now faces a decision perhaps even more challenging than any of the cases that have come before him in his 27 years on the court.
Those very deliberations – conducted in private but with immense public significance – reflect the very heart of the Breyer ethos about public service and, especially, the high court.
He has argued for years that Supreme Court justices are non-political actors on the American stage, and yet the replacement of Justice Ginsburg with Justice Barrett pushed the court dramatically, and decisively, to the right, an adjustment that troubled Justice Breyer deeply. In agony, he has been consulting with fellow jurists and friends. His decision, expected before the term ends by early July, will be by far the most important statement issued from the Supreme Court this year.
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David Shribman