Waiting on the US Supreme Court’s final decisions of the term has become a venerable summer pastime. But this year, the wait has been especially fraught.
Eighteen decisions remain before the court officially ends its current term, traditionally by June or early July. They include some of the court’s most eagerly anticipated cases, including on the fate of Roe vs Wade and abortion rights, as well as guns, environmental regulation and school prayer.
As the wait for pivotal cases continues, tensions have grown, with protesters demonstrating at justices’ homes, barriers being raised outside the court and authorities bolstering support for the court’s police.
Adding to the strain was the highly unusual leak of a draft opinion from the typically hermetic court in early May. It suggested the court’s conservative majority was prepared to overturn the nearly 50-year-old Roe decision, causing an immediate uproar.
Recently a California man was charged with attempted murder after being arrested near the Maryland home of Justice Brett Kavanaugh with a gun and other weapons. He told police he was upset by the likely outcomes in looming decisions.
Barbara Perry, Supreme Court and presidency scholar at the University of Virginia, described it as one of the most tense moments in the court’s history, with barricades surrounding the building like the ones that were erected in the wake of September 11 or the US Capitol attack in January 2021.
The abortion draft opinion leak has given more time than usual for sentiments to flare over the deeply divisive issue, amid already rising discontent with the court expressed at protests around the country and on social media. The court is “in uncharted territory right now”, Perry said.
Overall public approval of the court is at a new low, according to Gallup and other polling. Indeed, most Americans oppose overturning Roe.
Part of that is a reflection of how the court’s ideological make-up has shifted over the past few years. After former president Donald Trump successfully installed three of his nominees to the court in his four-year term, conservative justices now hold a solid 6-3 majority.
Much academic literature suggests that the court will typically remain aligned with public opinion, although this relies on checks and balances within the government more broadly, said Lee Epstein, a political scientist at Washington University in St Louis. Given the polarisation in Congress, any effort to punish the court for getting out of ideological step — packing its ranks or freezing its salaries — seems unlikely.
“There’s literally no fear on the court’s part,” Epstein said. “I think this court just has a lot of confidence.”
Michael Klarman, professor of American legal history at Harvard Law School, said the court was confronting one of the “most extreme crises in [its] history with regard to legitimacy”.
Key to that crisis, according to Klarman, was the effort by Mitch McConnell, the Senate’s top Republican, to block confirmation hearings for Barack Obama’s nominee Merrick Garland in the final year of Obama’s presidency — “essentially stealing a seat” that could have been filled by Democrats, Klarman said.
Klarman added that “what [the court is] doing with that majority . . . is some of the most radical constitutional revisions . . . at any point in American history”, pointing to the court’s decision to halt president Joe Biden’s Covid vaccine mandate and its apparent willingness to consider overturning Roe and expanding gun rights.
It has also accepted cases that could generate more hot-button rulings in the future, including one that seeks to end affirmative action based on race in university admissions.
The court is also facing controversy after reports detailed communications between Justice Clarence Thomas’s wife, Virginia “Ginni” Thomas, and officials close to Trump. Texts published earlier this year by the Washington Post showed the conservative activist pushing Mark Meadows, the former Republican congressman who served as Trump’s chief of staff, to overturn the results of the 2020 presidential election.
Several Democratic lawmakers have since called for Thomas to recuse himself from cases relating to the election and the January 6 attack. Those revelations “certainly besmirch the court’s attempt to maintain its legitimacy and rise above partisan politics”, said Perry.
Despite the high impact of its blockbuster cases, the Supreme Court’s own workload has never been lower. The three most recent terms, in particular, have been sluggish, with the court delivering record-few opinions at record-slow speeds and exacerbating the summer wait — especially with its penchant for saving some of the most divisive decisions for the end.
In its most recently completed term, court scholar Adam Feldman points out, the court “decided the fewest number of cases on oral argument since the Civil War”.
There are a number of theories floating around to explain the diminished workload — for instance, Congress passing fewer important laws in need of scrutiny, the rise of the “celebrity” justice and a demand for more time on the lecture circuit, or a diminished urgency to resolve every dispute in lower courts.
“I don’t think anyone has nailed it,” Epstein said. “It’s a really great puzzle.”
“The justices are letting more issues linger, more cases just linger in the circuits,” said Josh Blackman, a professor at South Texas College of Law Houston. “They’re less concerned with providing uniformity of federal law.”
The court is next expected to hand down decisions on Tuesday and Thursday. Whether those will include a ruling that potentially changes the law of the land — or whether Americans must wait a few days, or weeks, longer — is anyone’s guess.