What now / a Supreme Court roundtable

COA Magazine Editor Dan Mahoney sat down with two COA professors, one COA graduate, and two current COA students for a discussion on the Supreme Court, the constitution, voting, vision, bad puns, and where we go from here.

The roll of the court

DAN MAHONEY: What is the role of the Supreme Court in the United States?

BOB SEDDIG: One of the traditional views is that the Supreme Court is a magnet for minority rights and minority rights grievances because of the exclusion by definition of minorities from the majoritarian institutions. This is an old-fashioned view, though, because in many ways it antedates the pluralism of our society, and it’s simplistic to talk about Congress and the presidency as majoritarian institutions and the Supreme Court, as I said, a kind of magnet for minority rights. And by minorities, I mean all disenfranchised groups within society, not just based on race and ethnicity.

DAN: That is a great working definition to get us started.

BOB: I’m trying to make this fun, and I’m passionate about this stuff, but there’s nothing I can say right now to make it fun or attractive. There’s nothing I can do to make what I’m going to say optimistic about the future of the Supreme Court in the short run. There’s a lot of concern among all of us who are passionate, well, maybe not all of us, but many of us who are passionate about the Supreme Court are deeply troubled right now, not only about the overturning of Roe v. Wade, but also other other revisionist, ultra-conservative ideas about basic fundamental rights which go beyond reproductive rights and privacy.

URSA BECKFORD ’17: I agree with Bob and have the same concerns. When it comes to whether the Court protects fundamental rights, I think the first problem is that reasonable people disagree about what rights we’re talking about. Which ones do we think are in the Constitution? How do we define them? Are we talking about a woman’s right to choose to have an abortion, or are we talking about the rights of an unborn child? But even if you set that problem aside, looking at the history of the Court, it has not been a bulwark against violations of individual rights. Obviously, there are decisions that I think have had good effects, at least in the short term, like Roe, Griswold v. Connecticut, Loving v. Virginia, Obergefell v. Hodges, etc. But in the moments where the country has really been tested, in terms of whether we are going to hold fast to our ideals, the Court has largely failed. Decisions like Korematsu v. United States, where the Court said that it was constitutional to have internment camps for Americans of Japanese descent, or the espionage cases in World War I, where the Court said we could lock people up who opposed the government.

DAN: In drafting the Constitution the framers did not clearly define what the role of the Supreme Court would be. The Court was seen as necessary but their role was fairly ambiguous. How then, over the last 30 years, did the Court become the most powerful institution in the United States?

BOB: In many ways the attempt on the part of the Supreme Court to deal with the subject of slavery and to try to resolve the slavery question was the first major foray into making a public policy pronouncement in the guise of constitutional interpretation. So, it really hasn’t been in the last 30 years—or even I would say 75 years—that the Supreme Court has waded into the waters of policy choice. The Supreme Court taking it upon itself to try to figure out and resolve the slavery question represents a milestone, and a very sad one too, especially when you read the opinion and what the Chief Justice says about people of color in that opinion.

JAMIE MCKOWN: I work in the time period of the Dred Scott v. Sandford case in 1857. When talking about the evolution of the Court, people start with Marbury v. Madison [1803] and the precedent of judicial review. It’s not just about what’s happening around the Dred Scott decision, which was actually a pretty abysmal decision; also a very political decision in many respects. But coming out of that decision, the Republican Congress knew it had to correct the error of Dred Scott, which is how we got the 14th amendment. One of the first clauses in that amendment is supposed to rectify the question of citizenship: all people either born or naturalized are citizens of the United States.

“There’s nothing I can do to make what I’m going to say optimistic about the future of the Supreme Court in the short run.”

What is really interesting to consider is that in the post-Civil War era, we see an expansion of the federal government vis-a-vis the states. You’ve seen this at various points in time in our history, most recently in the 1960s and ’70s. Whenever you see the national government expanding certain guarantees of constitutional rights, then you’re going to have these interpretation issues as to what that involves.

The jurisprudence around the 14th and 15th amendments has led to some of the most impactful questions that the Court has wrestled with over the years. But the evolution of the Court didn’t happen overnight, it didn’t just happen with Marbury. It happened as government changed, as the role of the federal government vis-a-vis the states grew, and the Court was asked to weigh in more often.

SARAH OTTINGER ’25: Just going off what both Bob and Jamie said, when I’m reading these cases from our current Supreme Court, the framework that I go into it with is always the idea that the Court is not a lawmaking body. That was never its purpose. A court is for judging laws, not creating laws. If I’m remembering correctly from Bob’s class, that was pretty much it, and that’s a really important thing to say. Also, the reason the Court was created that way was that it fits pretty well into the idea of checks and balances, which are integral to the way our government is run.

In an ideal world, the Supreme Court and the other branches of government create a nice feedback loop. If you’re coming across this issue consistently, like people keep bringing the same case over and over again, that should tell Congress they need to pass a different law. In a sense, the Court can say let’s work to get these laws in place so the public will benefit later on, but that can be abused too, and then the courts can create things like doctrines. Another problem is that if a court is leaning in a political direction, it is not incredibly challenging for it to rule on political ideology, rather than just a legal ideology.

BOB: That was really beautifully stated, Sarah. It’s difficult, and you pointed to this, to draw the line between interpretation and legislation by the Court.

URSA: When you read these decisions, Sarah, do you feel like the Court is making law?

SARAH: Kiara [Carman ’24] and I are in Ken Cline’s Environmental Law and Policy class right now. We read the West Virginia v. EPA case, which is a horrifically frustrating case to read. But I’m going to lean back onto Dobbs v. Jackson to answer your question specifically. When I read Dobbs with the framework that the courts are not a legislative body, it doesn’t feel like the Court is creating law, but it does feel like a giant loophole. It’s really frustrating to read it because they’re not doing something that is beyond their scope but when you look at all the historical context and the precedents that have been set, Dobbs just does not add up. They flat out ignored a lot of history and a lot of precedent.

URSA: If we can we go back to Marbury for a second, I think certainly there’s the makeup of the Court at any particular time, but also, as we touched on before, the amount of power the Court has. It’s not at all clear that the framers thought the Court should have the power or would have the power to decide these major social and political questions facing the country. Their current power, at least in my view, is inseparable from Marbury. Marshall was a brilliant politician who maneuvered the Court into having an enormous amount of power, but it’s not at all clear the framers intended the Court to be seen that way.

DAN: The question then becomes at what point do courts lose legitimacy?

JAMIE: It’s interesting because it also goes back to that point earlier, which is when we discussed the major political and social questions facing the country… the whole concept of what the country was at that period of time, right? The degree to which we have to constantly remember that when we talk about this kind of originalist thinking about the Constitution that some people approach jurisprudence from, the idea of the way we see the United States today is not quite the same way it was seen when the constitution was created. What was the country at the time? The questions the entire country was dealing with were really narrow and often related to things like interstate commerce, territorial defense, and questions about territorial law.

The supremes and social movements

JAMIE: We can’t talk about its transformation in terms of how the Court’s rulings shape laws without addressing the change of how social movements approach the Court, because there is this argument, particularly after Brown v. Board of Education and Roe, that progressive movements—or particular kinds of political movements—saw the Court as a place to go. This is the argument put forward in The Hollow Hope that asks, If you have a finite amount of resources, where do you invest those resources? Are you in the streets, are you working at the state legislative level, are you hiring lawyers to go and sue in court?

This is changing how people focus their energies, because if you are of a particular political persuasion, instead of seeing the Court now as a place to go to check the abuse of the legislature, you’re seeing it not as a place to go, and instead you’re going to invest your money hitting the streets. I suspect there are a lot of people, whom maybe I would not agree with, who think the most activist decision ever was Roe to begin with.

BOB: For a long period of time, maybe beginning with Brown, the abdication of responsibility for governing by Congress, particularly, shifted the weight, or the locus, of public policy making increasingly to the judiciary. One of the reasons that the Supreme Court has become so powerful is because of the absence of effective governance on the part of, particularly, Congress. I think of Congress as—and this brings up the title of a book I read a long time ago by a senator from Pennsylvania who called Congress the sapless branch. This was a book written in the 1950s, and Congress is even more sapless now than it was then. What am I saying? I’m saying that the gradual, but important and significant amassing of power within national institutions by the Supreme Court was probably inevitable with the abdication of responsibility on the part of other institutions. But now it’s come around and it’s bitten us in the behind, because the power that the Supreme Court has to create these important fundamental rights declarations also means that it can all of a sudden take them away. And I wasn’t expecting the taking away of the basic holding in Roe. I don’t think the Chief Justice was either. So where do we go? Jamie addressed this, I think, very effectively. Where do we go now?

KIARA CARMAN ’24: Also, when looking at the courts, they go through periods of time where they’re expanding rights and where they’re taking away rights they have previously afforded. Right now, we’re in a period of time where we’re seeing courts take away rights that they’ve previously granted through their judicial review. It’s interesting to be watching that and thinking about that. Actually, we talk a lot in environmental law and policy about the politicization of the Court, and how we hope cases we’re reading do not go to the Supreme Court right now.

Right now, progressive groups are using the state courts as the means for judicial expansion of certain rights because they are too afraid that if these cases go to the Supreme Court they will actually diminish rights they previously granted. There was a case recently that the Supreme Court decided and the opinion came out this summer. That opinion overlooked 200 years of Native American legal rights and precedent that other courts had been repeating since the Marshall trilogy.

JAMIE: The case that y’all were mentioning, Kiara, was Oklahoma v. Castro-Huerta, which is the case on Native American law that just happened. What’s fascinating about that case is Justice Gorsuch wrote a dissent which is on fire. And I can’t believe I’d say, wow, that’s a great Gorsuch decision… He makes one of the best examples of the point about the political nature of the Court, where he’s just like, Y’all threw reasoning out the window; this is ludicrous. Which is ironic coming from Neil Gorsuch.

JAMIE: I’ve read some really provocative arguments that Roe actually, in some respects, stalled out a kind of fight that was being taken to individual legislative levels. What Roe allowed was not only for conservative groups during the post-Roe era to raise tons of money, but, in the process, we get the abortion-access question with many thinking that as long as Roe existed everything was fine... It was kind of a quiescent effect, right? However, in a lot of places the right to an abortion was never guaranteed because people did not have adequate access to the procedure or even to clinics.

KIARA: I definitely, at least observationally, have seen how a lot of younger people and the younger generation don’t see the Court as something that is actually legitimate. Especially in the post-Dobbs world; that case has really delegitimized the Court. For us, the Court is not an actual place to go to solve difficult issues. The fact that we see it as a delegitimized, nonfunctioning body within the government is a big problem. It will be interesting to see what the repercussions are as people grow older and become more politically educated and are able to vote, because if the Court continues in the direction it is headed there will be a lot of political backfire from the younger generations.

Galluping into the unknown

DAN: According to a Gallup poll released in September 2022, those reporting a “great deal” of confidence in the Supreme Court was down to 12%. How do we as a country move into the future with that number?

JAMIE: Another poll, conducted by Pew in September 2022, has demographics broken down by age and it’s astonishing. This goes right to the point Kiara made earlier. Young people between the ages of 18-29 who expressed a “very favorable” opinion of the Supreme Court was at 7%.

SARAH: I’m a second-year student at COA. I came to college young; I was 17 when I started. I’m fully Gen Z. Our generation is—say whatever you want about our generation, but we are terrifyingly educated, because when you’re raised with this much media, you know your rights probably a long time before other generations did, even if you don’t know them verbally. I didn’t know what the Constitution said, but there was a lot of discourse online about what was legal and what was illegal. By the time I was 10, I was on social media and getting to see people’s reactions to their lived experiences. I was 12 when Trump got elected. All of my teenage years have been consumed by watching this steady decline into chaos, so my perspective is kind of abysmal. I don’t remember a time when it wasn’t this confusing. There was the 2008 recession, there was my childhood, and then there was Trump.

Our generation is so out of touch with the idea of actually trusting the government at this point. I don’t know anyone my age who’s like, Oh, the government’s got it. We’ll leave it. How’s your day going? This is not to say that we believe we’d be great if there was no government, but we have been raised with this feeling of chaos and all the adults around us being like, Oh God, this is uncharted territory. And we’re like, Whoa, everything is totally new? That’s kind of terrifying.

KIARA: The power of the internet has really changed the way that courts are viewed because we have easy access to all of the opinions they write. Once opinions come down, people online will read them and break them down into digestible information for the rest of the world to see and understand. That’s how a lot of online activism gets spurred into real activism on the streets.

URSA: When I think about the low confidence in the Court, here’s what I don’t think. I don’t think that people are sitting around the kitchen table saying, If only the Court understood that there’s an implied right to privacy in the Due Process Clause of the 14th Amendment that protects a woman’s right to choose to have an abortion. I don’t think they’re saying, I would have confidence in the Court if they just understood that the Second Amendment test should be a balancing of government and private interests rather than a test that looks at the nation’s historical tradition of firearm regulation. I think the reason there’s such low confidence in the Court is that people are fed up with the fact that nine elites from Harvard and Yale who are fairly out of touch with what life is really like and are totally unaccountable are making decisions for the rest of us.

JAMIE: But to be clear, that’s exactly the messaging that you got from pro-life organizations after Roe, which is, I can’t believe these elites are making decisions for the rest of us. That same argument is exactly what people raised money on for so many years.

It’s fascinating; according to that same Pew study, a majority of people now feel the Court is conservative and only something like 7% think it’s too liberal. I want to meet those people, by the way, that 7%. I want to know who’s like, Yeah, this Court is too liberal.

DAN: Are you sure you want to know?

JAMIE: They’ll be in my Conspiracy Theory class in the winter term.

“People are fed up with the fact that nine elites from Harvard and Yale who are fairly out of touch with what life is really like and are totally unaccountable are making decisions for the rest of us.”

DAN: Can you see the conservatism of today’s Supreme Court as a corrective to the progressivism of the Warren Court?

BOB: Well, you can assess the decisions from the Supreme Court over a long period of time in terms of cycles. And there are many, many people who enjoy talking about the cycles of US history. I’d like to go back though, if I may, to some of the comments about the younger generation. When you were speaking for the current generation, let’s say college students or high school students, you made some generalizations which were kind of jarring me a bit. If you went to rural Wisconsin, let’s say, or rural Iowa, rural Georgia, and met with your generation of students there, would they concur with what you were saying before?

SARAH: Just so you know, I am from rural Wisconsin...

BOB: I know, I know. Tell me about your generation in Park Falls or Chippewa Falls—

SARAH: Chippewa Falls, yeah, Wisconsin, born and raised. I was home-schooled for half my life. I was public-schooled and private-schooled too. I knew from a young age that we were in a pretty Republican-leaning area. Growing up, my dad was a Republican, my mom was kind of a fence sitter, and my grandparents were Republicans. Pretty much everybody in the area was.

I didn’t think much about politics as a kid. But one thing that did consistently surprise me was going to school and seeing kids whose parents I knew had Trump signs outside their house leading debates and talking about feeling politically disenfranchised. It didn’t mean that they weren’t Trump supporters or that they weren’t Republicans. It didn’t always correlate to where they were on the political spectrum. By the time I was 12 years old, I was having heated political debates with my peers, and I don’t know how normal that is.

KIARA: I grew up in upstate New York in a very red area. I grew up distrusting the government too and yet my entire family is incredibly conservative. But there’s great distrust of the government and the Court there from both blue- and red-leaning people. Echoing what Sarah said, seeing this general distrust of the government and the Supreme Court, no matter what political side of the spectrum you’re on, has been something that I have seen my entire life.

“It’s like a slinky that just keeps expanding and I know it’ll bounce back up eventually. I just don’t know if it’s going to hit the floor first. That’s kind of what it feels like.”

JAMIE: You want to talk about a gray area with the moment we are living through, I have one. I’m very concerned about where we could be in terms of the Court, because of the points Kiara and Sarah and others have made, if the Court lacks legitimacy and is going be asked to resolve election cases, that is a train wreck waiting to happen. We are dealing with very murky territory here with little, if any, precedent. If you look at Bush v. Gore, that whole decision happened in part because Gore was just like, You know what, cool, I’m out. Trump exposed that if you keep pushing far enough, the framework begins to crumble. The courts then become arbiters in all kinds of challenges to things like absentee balloting, signature verification, drop boxes, elector distribution. And if the public doesn’t have any faith in the courts…

BOB: I agree. It’s not only the gumming-up factor. It’s the prospect of the number of cases of litigation that are likely to come forward to institutions that now lack the legitimacy to make a sound decision. It’s just a nightmare coming from several different directions

JAMIE: It could be a very ugly, potentially violent situation, to be honest.

Voting and a short history of the future

DAN: Has there ever been a moment like this that the Supreme Court—or courts in general—were able to sort of shine through a little bit and provide some stability, or is this something that’s really unprecedented?

BOB: I don’t have anything which is comparable, but during the New Deal period in the 1930s, when the Supreme Court finally came around to accepting the role of government regulation of business—which is a very different issue from what we’re talking about—there was a kind of shining through then. But I think we’re in uncharted territory in many, many ways now. Not only with respect to doctrines and decisions, but I think others articulated this so beautifully with the acceptance of what the Supreme Court might rule; its legitimacy.

KIARA: What’s interesting about expanding the Court is it gets back to election laws and who’s allowed to vote and the disenfranchisement of specific groups of people. So, is the expansion of the Court an actual legitimate thing that we can even do right now, given the current state of politics? Also, are there people in Congress willing to go down that road, that can actually get it through? And if we can’t get it through, does that just further delegitimize the government?

BOB: Not a very happy thought.

DAN: So let me ask this: where are we in the future, say 10, 20, or 50 years from now?

SARAH: My brain is like a consistent tug of war between the points just made. The despair of that feedback cycle. It’s like a slinky that just keeps expanding and I know it’ll bounce back up eventually. I just don’t know if it’s going to hit the floor first. That’s kind of what it feels like.

JAMIE: For me, I’m just watching these midterm [2022] elections really closely. Right now, Republican organizations are like the dog that caught the car bumper, right? They got what they wanted but what does that look like? I am waiting to see to what extent there have been people who may have considered themselves conservative but were in favor of a woman having control over her own reproductive rights, and were able to talk pro-life or abortion bans because Roe meant it would never actually happen. I grew up with people like that. Republican voting, particularly women who were like, They’re never going to get rid of abortion rights, right? And now that it’s on the table at a state legislative level, what will that look like for those voters?

There’s a lot of uncharted territory we’re heading into, both in terms of the courts and in terms of the political system.

URSA: There’s this Judge Learned Hand quote. He obviously spoke in the gender binary of his time, but he said, Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it. We have a choice here. I actually have a lot of faith in people because when I travel across the country, people are just really amazing and they don’t look anything like how they’re talked about in the media, or in the polls, or by the pundits and politicians who use them to make various points. I actually have a lot of faith in people going forward.

JAMIE: It’s a fascinating question Ursa brings up about the role of the public. Political scientists have these debates about if courts follow the public or if courts shape the public. And the idea of the public mind—I’ve been spending a lot of time reading about Madison and the public mind, and Madison says that the public mind, whatever we consider that to be, is the last check or bulwark that ensures what we would call rights… Because the Constitution is just a flimsy piece of paper if there is not public sentiment behind ensuring it is upheld.

ROUNDTABLE PARTICIPANTS