Supreme Court poised to alter policy

SHARON — The Supreme Court is likely to be the most conservative court in 80 years, according to Stephen Wermiel, a journalist, author and law professor at American University.

Wermiel spoke at the Hotchkiss Library of Sharon on Sunday, May 5.

He said he thought it likely that the Supreme Court, with Chief Justice John Roberts at the helm, will be similar to the Supreme Court of the early 1960s, led by Chief Justice Earl Warren.

The similarity will not be ideological, but in terms of the makeup of the court.

When Arthur Goldberg joined the court in 1962, it gave the liberals a majority of five justices (out of nine).

The Warren Court went on to issue several landmark decisions. It was successful enough that Richard Nixon used the court as a political target in the 1968 presidential election.

Today the court also has a 5-4 split, except the conservatives are in the majority.

Wermiel told a story about Justice William Brennan, who served on the court from 1956 to 1990 and was one of the liberals.

Brennan, Wermiel said, met his new law clerks for the first time on the day after the Labor Day holiday.

The clerks were highly qualified people — top of their law school classes, editors of prestigious journals.

Nonetheless they were nervous, especially when Brennan asked them this seemingly simple question:

“What is the most important principle of constitutional law?”

They hemmed and hawed until Brennan supplied the answer:

“It takes five votes to do anything on the Supreme Court.”

The conservative wing of the court is Roberts, Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh.

“So far they are moving slowly,” said Wermiel. “I think that is probably deliberate.”

Wermiel believes the turmoil surrounding the appointment and confirmation of Kavanaugh last year has a lot to do with the slower pace.

“The Supreme Court is never out of the headlines, but maybe they could be on page three.”

“Don’t be fooled,” he continued. “This is a very conservative court.”

And many “highly volatile” cases are in the works.

He said of the conservative majority, Thomas is “the most radical member.”

Thomas has a list of “precedents and doctrines” he would like to see overruled.

Wermiel said rumors of Thomas retiring abound, but that is par for the course.

The major sport in Washington is not the Nationals baseball club or the Capitals hockey team, but “Supreme Court retirement speculation,” he quipped.

“Apparently he is not going to retire, which probably comes as a relief to the Senate and the press,” still smarting from the Kavanaugh hearings.

Wermiel said Roberts may or may not take on the role of “swing vote,” like Anthony Kennedy, Sandra Day O’Connor or Lewis Powell.

Roberts comes at cases from two angles — constitutional issues, and the “reputation and credibility of the court.”

If Roberts believes a case involves the court’s reputation and does not present significant constitutional issues, then he could be a swing vote.

But on cases involving conservative issues such as abortion, Roberts is unlikely to be a swing vote in the same vein as Kennedy, O’Connor or Powell.

One sign that the conservative majority is willing to flex its muscles is a recent death penalty case, in which an inmate request for a different method of execution was denied by state authorities in Alabama.

The inmate’s request to hear the case was turned down in a decision that came in the evening. What made this unusual was that Associate Justice Stephen Breyer dissented, asking for the decision to be delayed until the justices could meet the following morning.

“It was kind of startling,” said Wermiel. “That’s not how it usually works.”

“Unlike other branches of government, the Supreme Court is civil. This is not an example of that. It was unusual for Breyer to snipe at his colleagues.”

Since 1925, the court’s custom has been if four justices agree to hear a case, the case gets heard.

But in this case the conservatives outvoted the liberals.

“It’s not the court working at its best,” said Wermiel.

He gave a preview of some upcoming cases. He said he expects a 5-4 decision supporting the “Bladensburg Peace Cross,” and a 5-4 decision allowing a citizenship question to be included in the 2020 census.

Making their way slowly through the process are several hot-button cases, including three state abortion laws, three petitions regarding employment discrimination law, a sequel to the “Masterpiece Cakeshop” case. 

Not to mention cases on immigration and executive branch authority.

Wermiel noted that the justices routinely have lunch together. They are not allowed to talk about cases at these lunches, so they talk about whatever comes to mind.

The result is that despite very real differences of opinion, the atmosphere is collegial.

“They work in a way I wish Congress would emulate.”