Williams experts delve behind the headlines to examine the ripple effects of recent changes in the U.S. Supreme Court’s people and perspectives.
Over the summer, the Supreme Court of the United States announced the latest in a series of decisions that are dramatically changing the American landscape. The court’s majority overturned Roe v. Wade, which for 50 years protected abortion rights at the national level. It struck down part of New York State’s 111-year-old law governing concealed-carry firearms. And it ruled that the U.S. Environmental Protection Agency can’t impose limits on carbon emissions without congressional authorization. Already on the docket for 2023 are two cases addressing whether race should be considered in college admissions. The controversial decisions come at a time when polls suggest the court is out of step with public opinion. A July Pew Research Center report stated that 57% of respondents disapproved of the decision to overturn Roe. A September report by Pew stated that “Americans’ ratings of the Supreme Court are now as negative as—and more politically polarized than—at any point in more than three decades of polling on the nation’s highest court.”
To understand what this all means, Williams Magazine turned to Justin Crowe ’03, chair of leadership studies and political science professor, whose courses include American Constitutionalism I and II, and Power, Policy and Democracy in America. He led a conversation in the fall with Cassandra Kirk ’89, chief magistrate judge in Fulton County, Ga., Rachel Levinson-Waldman ’95, managing director of the Liberty and National Security Program at the Brennan Center for Justice, Jeffrey Sutton ’83, chief judge of the U.S. Court of Appeals for the Sixth Circuit, and Alison Tucher ’84, presiding justice of the California Court of Appeal, First Appellate District, Division Three.
They discussed, among other topics, the court’s relationship to other governing bodies, the historical context of its recent decisions and how its power—and public perception of the court’s power—have changed over time.
The following conversation has been edited for clarity and space.
Justin Crowe ’03: What pops into your head when I say the U.S. Supreme Court?
Cassandra Kirk ’89: Protests and events that follow.
Jeff Sutton ’83: We’re at an interesting point in American legal history.
Rachel Levinson-Waldman ’95: Legitimacy crisis.
Crowe: The legitimacy crisis is something a lot of people are talking about. It’s a unique year in terms of popular confidence in political institutions, generally, and our legal institutions, specifically. What problem does that pose?
Levinson-Waldman: There have been times when the Supreme Court is a step ahead of where society is. The Supreme Court was stepping out a bit in front in Brown v. Board of Education, because there were still a lot of districts dragging their heels on implementing desegregation. That was seen as a net positive—the Supreme Court was leading the way. Other times, the Supreme Court and the country have been moving in concert. With gay marriage, there was an incredibly quick shift over the course of a decade or so. Now we’re seeing a time where the Supreme Court is landing on things like reproductive rights and feels out of step with where a majority of the country is by virtue of the fact that it is restricting rights rather than expanding them.
Kirk: Being in the heart of a historically civil rights-oriented community—Atlanta, Ga.—we anticipate protests. That’s where the will of the people is heard—in the streets. In 2020, people took to the streets to protest human rights violations, voting rights, police interactions, treatment of marginalized and privileged communities, and crime. Anytime I hear that the Supreme Court has done something, I have to ask, “What is that going to look like on the streets?” Because that is where our court really touches people.
Alison Tucher ’84: As the Supreme Court declines to recognize rights under the U.S. Constitution, taking itself out of the action on certain issues, it makes state courts more important. Reproductive choice is a big example. In California, we’re about to vote in a ballot initiative on whether our state constitution should expressly recognize what the California Supreme Court has already implicitly found there: a right for reproductive freedom. Another example is voting rights. In Rucho [v. Common Cause], the chief justice said the federal courts are not going to do anything about partisan gerrymandering unless Congress tells them to, but that’s OK, because state courts can still do something about it. So now, unless and until we get the independent state legislature doctrine as the law of the land, state supreme courts will be in charge of deciding what state law says about how we vote and our votes are counted.
“Anytime I hear that the Supreme Court has done something, I have to ask, ‘What is that going to look like on the streets?’”
Cassandra Kirk ’89, chief magistrate judge in Fulton County, Georgia
Sutton: Legitimacy and trust are critical to the rule of law. The reality is that the first place most Americans will interact with our legal system is in the state courts. There are roughly 80 million state court cases in a given year versus 400,000 federal cases. It’s critical to have faith in both systems, not just one. As to controversial decisions by the U.S. Supreme Court, I doubt that popular approval amounts to a useful test of legitimacy. Quite often the court must make unpopular decisions—say releasing a known murderer because the police officer’s search and seizure violated the Fourth Amendment or invalidating a popular law because it violates the free speech guarantee of the First Amendment. Such decisions do not undermine the rule of law. They enhance it, even if opinion polls show immediate public disagreement with the decision. Some of the controversial cases decided by the court in recent years—Rucho and Dobbs [v. Jackson Women’s Health Organization]—do not end the debate and permit several democratic avenues for change. The decisions may be inconsistent with what most Americans want, but they allow the citizenry to do something about the decision if they don’t care for it, whether by seeking federal or state legislation or by seeking relief under state constitutions. It’s difficult to know whether we are at a transition point when it comes to the role of the U.S. Supreme Court. But I predict that at least one feature of the Supreme Court’s work over the next 75 years will change in the next 75. First, the court has exercised constitutional review—the power to invalidate democratically enacted state and federal laws—in a more muscular way than any court in world history. Second, it has done so by interpreting a document that perhaps may be the hardest to correct in the world. The U.S. Constitution requires three quarters of the states to approve any amendment. Third, the justices all have life tenure with no age or term limits, a feature of the federal judiciary with few parallels in other judicial systems. I suspect that at least one aspect of this remarkable combination will not hold true for the next three quarters of a century.
Crowe: Cassandra, Jeff and Alison, you have taken different paths to your chambers in terms of life experiences and selection processes. How has that shaped how you do your job?
Kirk: Having been appointed by Republican Governor Nathan Deal, after a selection and vetting process, I had to remind democratic legislators that I have been in the community for a very long time. The person who ran against me in my first nonpartisan election used my Republican appointment against me. I have the potential to be unseated at every election. That is something of which I’m acutely aware. It does not affect what I do on the bench or in setting policy for our court, but I recognize I have to ask the public (including my classmates) for votes, support, and money. That changes my connection with the community and businesses, as well as how I make sure our court is accountable. Our magistrate court is the highest-volume magistrate court in the Southeast. From January 2019 through August 2022 approximately 240,000 cases were filed in our court, and we closed almost 200,000 of those. That required scheduling, staffing, and utilizing limited resources to move cases. People want a fast resolution; that is the purpose of our court. We have no jury trials, only bench trials. And, even when we are providing judicial support for other courts, I am intimately aware of the decisions that the 30 judges I appoint make, because the community is not shy about calling me.
Sutton: I used to think of the election of state court judges as quite strange—to use a majoritarian process to select people for a non-majoritarian job. But then I went through the federal confirmation process and felt like a bill going through Congress. That process had plenty of political components to it. In the end, some humility is required when it comes to the right selection process. There’s no minoritarian way to select judges. You have a variety of approaches that all permit input from citizens through direct elections or choices by their elected representatives. What stands out about the federal system is the absence of age or term limits. Only one state, Rhode Island, still gives its judges life tenure. Perhaps that suggests the federal approach hasn’t worn well over time. Either way, the many changes to the state judicial selection processes—and to our state constitutions in general—have generated a gaping contrast between our federal and state governments. Given the difficulty of amending the U.S. Constitution, the federal system continues to have many non-democratic components to it, all reflective of an 18th-century perspective on government.
“As the Supreme Court declines to recognize rights under the U.S. Constitution, taking itself out of the action on certain issues, it makes state courts more important.”
Alison Tucher ’84, presiding justice of the California Court of Appeal, First Appellate District, Division Three
Tucher: My oath is to uphold the state and the federal constitution, so my job is to decide cases consistent with the California and federal constitution to the best of my ability and on a schedule and in a manner that serves people in terms of how the court runs. I don’t view myself as running for re-election, though I am on the ballot periodically for the voters to decide whether I keep my job or should be replaced.
Crowe: Rachel, what is your take on how issues of privacy and national security are dealt with by judges who are elected or appointed or who have life terms or term limits?
Levinson-Waldman: They have seen themselves represented in and affected by privacy and surveillance issues. The best-known example is in the oral arguments for U.S. v. Jones in 2012, where the Supreme Court ruled on the constitutional implications of the police warrantlessly attaching a GPS tracker to the bottom of somebody’s car and following the location of the car for a month. Justice Scalia’s decision says it was a trespass and violates the Fourth Amendment, so we can resolve this fairly easily. But in the questioning, one thing that really hit home to the justices and produced very powerful concurrences was: “I drive a car. How would this play out for me if this is constitutional? Could I be followed?”
Similarly, with some of the big cell phone privacy decisions that came down, like Riley [v. California, which declared warrantless search and seizure of digital contents of a cell phone unconstitutional] and Carpenter [v. United States, requiring warrants to access cell site location information from a cell phone company]. You see the justices situating themselves, [realizing] this isn’t just theoretical or just criminal defendants or people at the front edges of technology. This could be all of us, literally, including the people who don the black robes and are often the most insulated from the consequences of their decisions. Set that against opinions about Fourth Amendment protections against overflights—if the government flies a helicopter or a plane over somebody’s backyard to try to get information. The court has said, “If a double-decker bus could drive by and see over your fence, then it’s fine for a plane to fly over.” Those positions have been critiqued because they come from the point of view of people who have the capacity and resources to build a tall fence. It ties together Fourth Amendment protections with the resources to attain them.
Sutton: Government officials who face regular elections—which includes 90% of state court judges—have to stay engaged in the community. Some advocates for marriage equality thought state courts were the places to go because the judges are elected and they thus could see these norms shifting before their eyes. It’s not that federal judges aren’t in the community. But someone who has to report to the electorate on a regular basis is going to see things that those with life tenure may not.
Crowe: Supreme Court reform was an issue in the 2020 Democratic presidential primary. President Biden established a commission about it, but it’s broader than that. Is reform what you’re most closely watching in the months and years to come?
Kirk: My biggest concern is the push to defund the police, regulate the police, or privatize the jails. I am unsure from a safety standpoint what those policies will look like. For example, I could make a decision that follows the law and is good for me, my family, and my community. But if others disagree with my decision, I could find myself looking for a new job the next election season.
Tucher: I’m not holding out for reform in the process of selecting, or the tenure of, our Supreme Court justices. Before we could get that kind of reform, we would be able to get a lot of congressional action on issues that would cause the result of what the Supreme Court is doing to turn out quite differently, dissipating the urgency of reform. Regarding who gets selected, I believe the Supreme Court now has no justice who’s ever served on a state supreme court, and that’s too bad. Justice O’Connor, Justice Brennan and Justice Souter were three fabulous U.S. Supreme Court justices. Their formative years as judges were on their state supreme courts and, in that sense, they brought with them a respect for, and intuitive understanding of, what state judges and state courts do. That is a real blind spot—but not the only blind spot—in the current makeup of today’s U.S. Supreme Court.
Sutton: A lot of the big fights in the Supreme Court arise from inaction by Congress. It’s not easy for federal courts to determine the meaning of laws that have not been updated in over a half-century. Congress and the president may famously have the power of the purse and sword. But they have another power as well: the power not to decide, the power not to handle this hot potato or that one. Not so for the federal courts. If people take their dispute to the courts, the judiciary usually must answer it. I wonder if that has led us to rely too heavily on the federal courts—to ask too much of life-tenured judges in running a democratic government. Maybe it’s time to lower our expectations—not to ask the federal courts to resolve so many critical issues and not to insist that we nationalize the answers to so many difficult questions. Perhaps it’s time to think of our system of federalism as a friend instead of a perennial enemy. Localism has a lot of promising virtues. The people closest to a problem may be the best at identifying a solution to it. If a winning insight emerges, then, by all means, we can adopt it for the whole country. The great debate in American history is what should be national and what should be local. Today’s citizenry may come to see the value of deciding some difficult issues at the local level.
I appreciate that some people may wish that today’s Supreme Court acted more like the Warren Court of the 1960s, which nationalized a lot of rights. But in a democracy like ours, it can be helpful to let different approaches have their time in the sun. Give the current court a chance to show over time that its approach to deciding cases has virtues of its own—that it is neutral and not driven by policy-laden outcomes. Judges, as I can attest, can’t hide for long from being judged themselves over whether their decisions turn on the rule of law or the rule of individual men and women.
“As some big cases start to hit the court, presumably over the next few years, I’m curious about where people will land and where the center of gravity goes.”
Rachel Levinson-Waldman ’95, managing director of the Liberty and National Security Program at the Brennan Center for Justice
Tucher: I want to pick up on Jeff’s points that there’s an imbalance in the size of the policy footprint the U.S. Supreme Court is exerting, and that this court is exercising the power of judicial review in a “more muscular way,” as Jeff says, than ever before. I wish that our Supreme Court justices would have, written on their hearts, the idea that it is important to be humble and careful in striking down the laws passed by elected representatives. And that they wouldn’t try to tie us so tightly to the 18th century as in some of their recent constitutional decision-making. In particular, the [New York State Rifle and] Pistol Association [v. Bruen] case seems to say, if a particular restriction on firearms didn’t occur in the 18th century and occur often and appear in court of appeal records, then it isn’t constitutional now.
Levinson-Waldman: I’m especially interested in whether there will be changes to lifetime tenure at the Supreme Court. That would be a positive development in terms of less gaming of the system. The other piece is Fourth Amendment issues and, to some extent, First Amendment issues—but especially privacy and surveillance—produce strange bedfellows. Certainly, this is true on the legislative front and on the judicial front. You can’t necessarily predict where people are going to land on those issues. As some big cases start to hit the court, presumably over the next few years, I’m curious about where people will land and where the center of gravity goes.
Photos, from top: A leaked draft majority opinion on Dobbs v. Jackson Women’s Health Organization in May 2022 foreshadowed the U.S. Supreme Court’s decision to overturn 1973’s Roe v. Wade case that legalized
abortion nationwide. (AP Photo/Mariam Zuhaib)
Second Amendment rights were on the U.S. Supreme Court’s docket in 2019 (pictured, when the majority declared a case against New York City’s rules regarding the transport of firearms was moot) and again in 2022, when the court ruled that New York State’s 111-year-old concealed-carry laws were unconstitutional. (Andrew Harrer/Bloomberg via Getty Images)
The U.S. Supreme Court in 2019 ruled in a 5-4 decision that claims of unconstitutional gerrymandering are not subject to federal court review. (Aurora Samperio/ NurPhoto via Getty Images)
The U.S. Supreme Court began hearings on affirmative action cases involving Harvard and University of North Carolina admissions in October 2022. (Bill Clark/CQ-Roll Call Inc. via Getty Images)