On September 14, during an NYU Law Forum that was sponsored by Latham & Watkins, a panel of constitutional law and US Supreme Court experts discussed recent Court rulings as well as cases teed up for the Court’s upcoming term. Among the issues that the panelists examined were the independent state legislature theory, which argues that state legislatures have exclusive power to regulate federal elections; continued collisions between antidiscrimination protections and religious freedom; and a potential shift in the landscape of higher education due to challenges to affirmative action policies.
Melissa Murray, Frederick I. Stoke and Grace Professor of Law, moderated the panel, which featured Wall Street Journal Supreme Court correspondent Jess Bravin; Marin Levy, a professor at Duke University School of Law; and Paul, Weiss, Rifkind, Wharton & Garrison partner Kannon Shanmugam, chair of the firm’s Supreme Court and Appellate Practice Group.
Panelists explored the implications of recent rulings by the Court’s 6-3 conservative supermajority, including Dobbs v. Jackson Women’s Health Organization, which reversed Roe v. Wade and eliminated federal protection of abortions, and West Virginia v. Environmental Protection Agency, which limited the agency’s authority to combat climate change. They considered what these rulings may presage for the upcoming term, and discussed whether the Court has become politicized in a way that threatens its legitimacy.
Watch the full discussion on video:
Selected quotes from the discussion:
Kannon Shanmugam (5:51): “I think the thing that is striking…is the velocity of the Court’s movement in certain areas of the law…. I don’t think there’s any particular outcome from the Court last year that was surprising in terms of how one might expect this Court with six conservative justices on it to rule, but I think many people were surprised, for instance, by the fact that the Court was willing to go as far as to overrule Roe v. Wade outright in the Dobbs case…. There are a number of areas of the law in which the Court is moving quickly rather than incrementally, and I think it’s really hard to identify any particular reason why that's happening.”
Marin Levy (17:14): “To the question, ‘Are we in a legitimacy crisis?,’ here’s what worries me. If we go back to a moment in time when the Court was suffering a similar real drop in terms of public confidence—because we are in one of those historic lows right now—go back to look at Bush v. Gore. I think it’s very interesting to note that the Court rebounded very quickly in public opinion…What happened there was that the Court was able to draw on the reserves of goodwill. It was able to convince the public after the fact that they weren’t a partisan institution. And what I worry about in terms of the current moment is that we’re not going down that same road. I think because the Court has decided to take on even more big, controversial issues, and I think because we are going to continue to see a 6-3 split with a lot of them, that it’s going to reinforce this idea that they are more partisan than they would like the public to think.”
Jess Bravin (1:02:48): “Is there an incentive [for the Supreme Court to merge with popular majority opinion? ]...I think that this Court is much more concerned about getting the law ‘right.’ They think that their predecessors made errors at various times over the past century or two, and they think it’s their job to correct them…I think that is a much greater weight on their minds than whether or not the public at large agrees with one decision, or even the general trajectory of their jurisprudence.”
Posted on September 28, 2022