After an 18-month absence due to the coronavirus pandemic, the Supreme Court returned this fall to an “explosive” term that experts say will likely influence voter turnout in the 2022 midterm elections.
“The chances of this term being a blockbuster term is very high,” University of Virginia’s A. E. Dick Howard told Newsweek. “This may well be the most explosive term since 2000, since the Supreme Court decided Bush v. Gore.”
This term, the court is taking up several cases that center around hot-button issues, including abortion, gun rights and the separation of church and state, and it’s not only the cases before the justices that set this session up to be exceptional.
On the bench are six conservative judges, including new Justice Amy Coney Barrett, whose confirmation to the bench marked the first 6-3 conservative supermajority on the Supreme Court in nearly half a century.
The collision of the blockbuster term and the ideological shift on the bench signals that the massive social issues before the court could easily gain the five solid conservative votes needed to change the law.
As for the inevitable fallout of those rulings? It is projected to fall right on the cusp of the midterm elections.
Assuming that the rulings will be conservative and right-leaning in those hot-button areas, Howard predicts that this term’s SCOTUS rulings will send droves of both Trump supporters and Democrats to the polls in 2022.
“The Court’s decisions will pump up Republican turnout—voters who will see those decisions as fulfilling President Trump’s promises of changing the course of constitutional law in this country,” Howard said. “[Those rulings] would be an effective invitation to Republican or conservative voters to turn out, seeing their wishes fulfilled.”
“At the same time, I think the other effect, surely, will be galvanizing Democrats who were afraid that this is what would happen when President Trump put his three nominees on the bench,” he added. “It seems to me that it is likely that the opinions will have a forceful effect on both groups of voters, both Republicans and Democrats.”
While conservative rulings could earn the support of many Republican voters, Howard noted that SCOTUS decisions could play even better for the Democrats, who will be looking to keep their slim majorities in the House and Senate next year.
“If I were a Democratic strategist, if I were advising Democratic candidates, I would urge them to make a big deal out of Trump’s appointments to the court,” Howard said.
“A big deal out of how the court is likely to knock down, overrule or undermine what liberals would say are basic constitutional rights—the right of a woman to choose whether to have an abortion or not, the rights of communities to protect themselves against gun violence, the wall of separation between church and state, preserving communities from supporting religious causes,” he said. “By all means, attack against those lines.”
Howard pointed out that using the Supreme Court’s rulings as a political strategy is not new. In fact, it is exactly what former President Richard Nixon did to the Supreme Court under then-Chief Justice Earl Warren when Howard served as a clerk to Justice Hugo Black.
“Conservative critics of the [Warren] Court complained about what they called ‘judicial activism,’ that the Warren Court was basically making policy, making up Constitutional law, unconcerned about legal constraints. And one of the people who was most critical of the Warren Court was Richard Nixon,” he recalled.
“During the 1968 presidential campaign, Nixon went around the country attacking the Warren Court. He used it as a cudgel,” Howard said. “He said ‘Look, elect me as president and I will put judicial conservatives on the Supreme Court.'”
Nixon went on to win the 1968 presidential election and in his first term, filled four Supreme Court vacancies—Justices Warren Burger, Harry Blackmun, Lewis Powell and William Rehnquist.
“This was a case where the rhetoric of the campaign clearly mattered. People were voting, according to whether they thought the Warren Court was a good thing or not, and conservatives were able to rally their forces to help Nixon get elected,” Howard said.
The conservative tilt is also expected to present a particular challenge for Chief Justice John Roberts, who was once the swing vote on the bench.
Now that there are six right-leaning judges, those on Roberts’ right won’t need him to secure the necessary five conservative votes as long as Justice Brett Kavanaugh votes with them.
The shift may further the burden Roberts carries as he attempts to mindfully navigate how the rulings may be perceived by the public, especially at a time when the majority of Americans disagree with SCOTUS’ handling of the job.
A September poll from Gallup showed that only 40 percent of Americans approve of the job the Supreme Court is doing—an all-time low for the high court.
“People respect the court,” Howard said. “That’s changing. It seems to me that the risk the court runs, and the conservatives are clearly worried about this, is that the decisions will look political.”
“If the conservatives on the court are striking down one constitutional right after another, then it may look like it’s simply an echo of the Trump agenda, of the campaign rhetoric, and that would obviously harm the court’s reputation,” he added.
While justices typically contend that they are not concerned with public opinion, Howard believes some, like Roberts, have indicated they care about the court’s institutional reputation and thus, how the court’s decisions play out in public.
As an example, the former SCOTUS clerk pointed to Roberts’ unexpected decision in the 2012 case that saved the Affordable Care Act.
“Conservative critics were all over him saying, ‘He’s jumped ship. He’s flipped. What has he done?’,” Howard said. “I think he was concerned that if the court struck down Obamacare outright, it would be received by the country as partisan. It would be to the Roberts Court what Bush v. Gore was to the Rehnquist Court.”
“So I think some justices do take it into account,” he continued. “Even though they are not willing to say they do.”