Brave new court: Melissa Murray on conservative majority
July 23, 2021
John Barrett interviews Melissa Murray during the 17th Robert H. Jackson Lecture at Chautauqua Institution
Melissa Murray refused to abandon her view: the newly formed conservative court is ready to bring about tremendous changes in the country.Murray, Professor of Law at New York University, co-host of the podcast Strict Scrutiny, and co-author an article Last September predicted that the Supreme Court’s transition from Judge Ruth Bader Ginsburg to Judge Amy Coney Barrett would have “earthquake consequences.” In a conversation with John Barrett, a professor of law at St. John’s University on Thursday, she warned: “Although we have not seen a shift in the earthquake in this particular semester, this is only the first semester.”
The open dialogue is sponsored by the Chautauqua Institute for its 17th Robert H. Jackson Lecture, an annual lecture composed of experts from the Supreme Court. The event took the form of interviews, and Barrett (the professor, not the judge) asked Murray about the state of the court.
Barrett said that the 2020-21 term appears to be relatively calm, partly because the number of cases judges choose to hear is small. After thorough briefing and debate, the court only judged 57 cases, which is the second lowest since the civil war. “Does the court use the nap as a way to deceive us, or is it… a more dramatic shift?” he asked.
Murray pointed out that the limited file during this term may be related to the background of the presidential election.Although the final election did not result in litigation comparable to the 2000 case Bush v. UpShe said judges could have eased the burden because they expected to make room for potential election challenges. In addition, the 57 rulings in disputed cases did not include many important rulings on shadow files, in which disputes were resolved without a complete briefing and debate. Murray pointed out that several important shadow cases have been resolved with the “fracture of traditional ideology.”
The most important shadow file rulings include emergency requests from religious groups seeking to waive state and local social distancing policies related to COVID-19. In the summer of 2020, while Ginsberg was still in court, the court rejected these requests with a 5-4 decision, and Chief Justice John Roberts joined the ranks of liberal justices. However, with the addition of Justice Amy Connie Barrett, the conservatives of the court no longer need the Chief Justice’s vote, Murray said.This can be seen in the decision Tanton v Newsom, Where the group began to support religious groups requesting exemptions from COVID-related restrictions. Murray went on to say that by only looking at the merits of the case file, commentators who claimed that the court was “more moderate and less partisan” failed to consider the key role of the shadow file.
In addition, she said, decisions that are praised for supporting crossing ideological boundaries usually have limited impact. For example, in a school lecture case that attracted widespread public attention, Mahanoy Regional School District v. BL, The judge ruled that 8-1 is beneficial to the students. But the decision was settled on narrow grounds, and it did not define the conditions for schools to supervise speech—as Murray said, “a narrow decision with little meaning.”Again, it’s worth noting that Fulton v Philadelphia Is the court’s opportunity to give a more “maximum” push and overturn its 1990 ruling Employment Division v. Smith (The court ruled that individuals generally cannot obtain religious immunity from the law that applies to everyone) but failed to do so-therefore, once again the scope of the decision is limited to the specific facts of the case. Murray hypothesized that liberal justices might have joined this view to prevent a wave of radical change in the field of religious freedom.
To conclude the interview, Barrett found Murray’s place in the court reform dialogue. “I don’t really support anything in this regard,” Murray replied. However, she believes that the “ghost of court reform” has shaped the way the court debates. Now that “court reform” has become part of the common vocabulary, judges are aware that dramatic moves may speed up dialogue and any resulting actions. If the 2020-21 semester is not the expected year of “maximizing change”, part of the reason may be the influence of the court reform dialogue. In addition, the court “really cares about its legitimacy to the public,” Murray concluded. “It’s not like Congress — it doesn’t have the power of a wallet. It’s not like the President — it doesn’t have the power of a sword. It really only has its own legitimacy power to allow the American public and other government agencies to comply with its rulings. Maintain this lawfulness Sex is to uphold the power of the court.”