The Supreme Court’s new term started with a new justice.
Justice Ketanji Brown Jackson made an impact on oral arguments this week.
“Her presence on the bench really has sort of changed the tone on the bench," Amy Howe says.
But with a conservative super majority will her questions make any difference on how the court rules in major cases?
“She may be looking at spending an indefinite amount of time on the losing end of a 6-3 conservative court," Howe adds.
Today, On Point: What we learned from the Supreme Court’s first week back in session.
On covering this 6-3 majority
Amy Howe: "It seems ... like the justices are likely to be much more predictable. And so sometimes even when a justice, one of the conservative justices doesn't necessarily ask any questions or many questions, as happened in the Alabama voting rights case, you may already have a signal of where you think the court is likely to go.
"In that case, for example, the five more conservative justices actually put a lower court order on hold earlier this year and agreed to take up the case, which allowed Alabama to use this map that a lower court had found likely violates the Voting Rights Act in the 2022 election. So you have a pretty strong signal of where the justices are. Even before the first lawyer gets up to stand and says, No, Mr. Chief Justice, and may it please the court."
On where the court's majority stands on major issues
Carolyn Shapiro: "It's always a little bit risky to make too many predictions based on oral argument. But I think it's fair to say that going into the term we have, along the lines of what Amy said, a pretty good sense of how the court is likely to rule in a significant number of the high profile cases. We don't know for sure. And so the thing I think to look out for in oral argument is whether here are any justices who we think of as being pretty firmly in that six justice majority who are asking questions, too, that indicate that they may be interested in doing something more unexpected."
What are we learning about the three women who make up the court's minority?
Amy Howe: "They almost seem to be working together, not necessarily in a planned, strategic kind of way, but in terms of kind of playing off of each other. And Justice Elena Kagan has actually also been very interesting to watch this term. What we've seen of her so far, you know, she had normally not been one to make news outside of the courtroom with her speeches and remarks. But you're right, up until the point that this term started, she was talking to her colleagues in her public remarks, sort of pushing back and saying the court's legitimacy right now is in danger because of the public perception that we are partisan and on the bench.
"She seems to have been talking to her colleagues and saying, you know, let's not sugarcoat what I think you're doing here. She was talking about the Alabama voting rights case, which was decided in favor of the challengers by a three judge court that included two Trump appointees. And she said, look, under our current law, it's a slam dunk. And so sort of trying to make the point, I think, that a ruling for the state would be a change in existing law and that the energy on the court, I think, has really sort of shifted a little bit with the arrival of Justice Jackson.
"If you had asked me or gone back to look at what I'd said, you know, at when Justice Breyer announced his retirement and they nominated Justice Jackson to replace him, I would have said, Well, you know, she's bringing a different perspective. You know, as a former public defender, as a Black woman instead of an 83-year-old white man. But, you know, she asks very different kinds of questions than Justice Breyer did. He was known for his sort of long, winding hypotheticals and his focus on the practical. And she's jumping right in with these arguments about originalism."
Will there be more of the kind of cases we saw last term?
Erwin Chemerinsky: "I think this is going to be a term like last term. I think we're going to see this with regard to the affirmative action cases. I think we're going to see it with regard to the voting case that you've been discussing. I think we're going to see it in terms of the ability of people to discriminate against gays and lesbians, on account of their religious beliefs or their speech. I think that the six justices, the majority, and especially the five most conservative justices have a clear agenda, and they're going to push it as far and as fast as they can."
On the court's approval rating
Erwin Chemerinsky: "The justices and the court have the lowest approval ratings since approval ratings were measured. The court has the lowest public confidence rating since that's been measured. Or to put this another way, and I agree with what Carolyn said. At a time when our country is more politically polarized than it's been since Reconstruction, What does it mean for the court to have come down so solidly on one side of the divide, and so far to the right?
"In terms of the justices speaking publicly, that's, of course, changed over the last couple of decades. Justices Scalia and Breyer were among the leaders in that regard. And we came to accept that justices would talk publicly. None of us should be surprised that there's deep tensions among the justices on the court. They, like all of us, care so much about these issues, and they have to deal with them and deal with each other all the time. I think what we've seen is those frustrations come out in the speeches, and I don't think any of us should be surprised by that."
The court has continued to stream its audio of the oral arguments live. Why do you think the court made that decision?
Carolyn Shapiro: "It's hard to put the toothpaste back in the tube. They started doing this during the pandemic and when there weren't people in the courtroom. And it didn't seem to have any particularly bad consequences. So I think for them to move to change that and go back to the way things were, where the audio wasn't released until the end of the week of of the argument, really, they would have to come up with some justification, and there just isn't one there.
"And I've been an advocate of live streaming the oral arguments for a long time. I can understand, although I don't agree with the arguments against cameras, but I think given that we already have audio, and that we have people in the courtroom, there's been no reason not to livestream. So I'm very, very glad that they're continuing to do that."
This program aired on October 7, 2022.