Looking ahead: alumni discuss the future of the Supreme Court
October 30, 2020
Three alumni gathered on Wednesday afternoon to discuss the life and legacy of the late Justice Ruth Bader Ginsburg, as well as the role of the Supreme Court following her death. Moderated by Katie Benner ’99, a journalist covering the Justice Department for the New York Times, the panel consisted of Nancy Bellhouse May ’78, a longtime Court observer and editor of The Journal of Appellate Practice and Process, and Dennis Hutchinson ’69, a professor at the University of Chicago Law School, legal scholar and former federal clerk. The discussion covered a range of topics, from free speech on college campuses to the increasing politicization of the Court.
Director of Alumni Relations Rodie Flaherty Lloyd ’80, who planned the event, explained its significance.
“Justice Ginsburg’s death caused a seismic shift on the Court and in our country and we wanted to find a way for our community to talk with each other and think about the future,” Lloyd wrote in an email to the Orient. “This topic provided us with yet another opportunity to engage with our alums, students and campus community by encouraging their thoughtful questions and comments.”
With the recent appointment of Justice Amy Coney Barrett to the Supreme Court and the election swiftly approaching, conversations about the direction of our courts are increasingly relevant.
“My old boss, Justice White, used to say, every time a new person joins the Court, it’s a new instrument,” Hutchinson said, referring to Byron White, who served as an Associate Justice of the Supreme Court of the United States from 1962 to 1993. “And what that means is everybody stands back and assesses what their priorities are, what they think they can now accomplish.”
As Justice Barrett takes Ginsburg’s now vacant seat, comparisons between the two are being drawn. For Bellhouse May, opinions of both justices are tied to the current political climate.
“I think there is some recognition at a base level that they’re both women who project a seriousness of purpose, who take their jobs as the center of their professional attention and intend to do a good job, [but] beyond that, I think things kind of diverge. I think the public view is very different of the two of them at this point,” Bellhouse May said. “[Barrett’s] almost, from the Federalist Society’s standpoint, a gift from the gods. [She’s] a brilliant academic, a perfect law school record, a distinguished teaching career. Fiercely conservative about any sort of measure.”
The panelists explained that Barrett’s appointment hints at a broader conservative strategy that has played out over the course of many years, bolstered by the growing influence of the Federalist Society, a conservative organization that advocates a structuralist interpretation of the Constitution.
“Think about the lower federal courts. Two-hundred-thirty confirmed judges at the appellate level and at the trial court level, and they’ve all been vetted by the Federalist Society. I mean, it is the great takeover of one of the three institutions of government, so what does that mean in the end?” Hutchinson asked. “What gets to the Supreme Court comes from somewhere, and that is going to be the phenomenon that we need to worry about over time.”
This phenomenon is even more important given the durability of changes to the court, with justices remaining in positions of influence long after the president that nominated them has left office.
“The courts are this very long-term project—lifetime appointments—and I think that for all of us we have a tendency to be very short-term in our thinking and in our strategy,” explained Benner in a phone interview with the Orient. “I think the courts and study of the courts is an important way to see what long-term thinking can yield and what long-term impact can look like, which I think we are not encouraged to do in our daily lives.”
As Benner explained, part of this long-term thinking entails moving beyond the consideration of Barrett’s confirmation as purely a “Trump phenomenon.” She mentioned that, over the course of four decades, Republican leaders have advocated for more conservative judges on the district and appellate levels, leading to the popularization of the Federalist Society over time. She clarified that although the open seat and the acceptance of the Federalist Society’s ideals among conservatives created the conditions for Barrett’s confirmation, the confirmation itself was not necessarily the Society’s goal.
“This is not a Trump phenomenon, and I just want to make sure that we think about that as we think about the … current Democratic focus on rebalancing courts.”
Bellhouse May agreed, pointing to the influence of the legislative branch in pushing through conservative judicial appointments as well.
“You characterize people as being concerned about these judicial appointments occurring under Trump—and they have occurred under Trump—but I think it is a fuller truth to say that these appointments occurred under [Senate Majority Leader Mitch] McConnell [(R-Ky.)],” Bellhouse May said. “The majority leader held the vacancies that appeared during the Obama administration, particularly the second term Obama administration.”
Attendees emphasized the importance of thinking about the role of both the legislative and the executive branches, as well as external influences like the Federalist Society in shaping our judiciary, especially as we approach an election.
“I think having a deep understanding of Supreme Court jurisdiction and current caseload is always important, not just before an election, but especially important right now given how SCOTUS is making critical decisions about curbside voting, vote-by-mail postmarks, etc. sometimes via the shadow docket,” Laura Petto ’15, who attended the event, wrote in an email to the Orient.
The speakers stressed that holistic knowledge of these events and political currents is particularly relevant for college students today, even when an appointed position can feel removed from daily life.
“I think that there’s a stereotype that college is an ivory tower far removed from everyday life, when in reality, our experiences in college are impactful in our lives and how we work,” Benner said.
Although many conversations can turn political, talking about the Supreme Court and the judicial branch in an objective manner also provided a sense of optimism for some attendees of the event.
“I was heartened by the talk,” Catherine Powell ’84 wrote in an email to the Orient. “It reminded me of the judicial philosophies that do guide members of the court, such as the pragmatism of Chief Justice Roberts, that may keep the court on a sane course.”
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