Supreme Court, United States: The Current Court

The Current Court

With the emergence of a working conservative majority, particularly under the leadership of William Rehnquist (1986–2005), many of the Warren and Burger court precedents in the areas of criminal procedure and civil liberties were scaled back. Though the court approved of restrictions on the right to abortion, it also, by a narrow majority, continued to uphold the underlying principle of Roe v. Wade. The continuing controversy over the abortion ruling and other civil liberties cases placed the court in the center of a national political debate, underscored by the bitter Senate hearings on the unsuccessful nomination of Robert Bork and the contention that surrounded the elevation of Clarence Thomas to the court. From the mid-1990s to the mid-2000s the other members of the court were John Paul Stevens, appointed by President Ford; Sandra Day O'Connor, the first female Justice, Antonin Scalia, and Anthony Kennedy, all Reagan appointees; David Souter, appointed by President George H. W. Bush (who also appointed Thomas); and Ruth Bader Ginsburg and Stephen Breyer, both Clinton appointees. At the beginning of the 21st cent., the court's center was far to the right of the center during the Warren and even the Burger years. On the other hand, Justices Souter, Ginsburg, and others were felt to have acted as a brake on conservative judicial activism. A significant subsequent set of decisions (2004, 2005) in which the justices found that only juries can make the findings of fact that affect a defendant's sentence was notable for the shifting alliances among the members that determined the outcome of the cases.

The Rehnquist court, despite its sometimes activist approach, also espoused the doctrines of judicial restraint, restrictions on federal power, and deference to the states. These positions were essentially abandoned by the court in Dec., 2000, when, after Al Gore had sought and won a court-ordered recount from the Florida supreme court, the U.S. Supreme Court split 5–4 along ideological lines and ordered an end to the recount (because a single standard for conducting the recounts had not been established by the Florida court). Many observers felt that the court had tarnished its reputation with its decision, and some felt that it was a blatantly political ruling in favor of the Republican candidate, George W. Bush.

In 2005, with the retirement of Justice O'Connor and the death of Chief Justice Rehnquist, Bush appointed John G. Roberts, Jr., to succeed Rehnquist and Samuel A. Alito, Jr., to replace O'Connor. These appointments, especially that of Alito, who was confirmed in 2006, were generally regarded as increasing the conservatism of the Court, as shown by its upholding (2007) of a federal law banning the late-term abortion procedure abortion opponents have called “partial-birth” abortion and its decision (2007) that strongly limited the degree to which school districts could use race in order to avoid resegregation. The Roberts court also been the most pro-business court in its decisions since World War II, though many of those decisions have been decided narrowly.

A notable ruling (2006) of the new Court determined that the president could not use military commissions that had not been authorized by Congress to try foreign terror suspects. The judgment appeared to undermine the Bush administration's long-standing but legally untested assertion that the president's constitutional powers to defend the United States were not subject to congressional legislation. The 5–3 decision overturned an appeals court ruling that had been decided in part by the new chief justice, who did not participate in the ruling.

President Barack Obama appointed Sonia Sotomayor to the Court in 2009; regarded as a liberal, she succeeded Justice Souter and became the Court's first Hispanic-American member. In 2010 Elena Kagan was named to the Court, succeeding the retiring Justice Stevens. Subsequent notable and controversial decisions include the Court's narrowly upholding, in large part, of the Affordable Care Act (known as Obamacare) in 2012, and two 5–4 decisions, written (2013, 2015) by Justice Kennedy, that extended constitutional recognition and protection to same-sex marriage. Kennedy was also a crucial participant in a 2016 decision that overturned a Texas law for placing medically unjustifiable restrictions on abortion providers.

The death of conservative Justice Scalia in 2016 brought political tensions over the court's membership to a new height when the Republican-controlled Senate refused to consider President Obama's nomination of centrist Merrick Garland. The open vacancy was ultimately filled by President Trump a year later, when he appointed conservative Neil Gorsuch. The subsequent appointment (2018) of conservative Brett Kavanaugh to succeed Justice Kennedy moved the court further to the right and effectively made Chief Justice Roberts the court's swing vote. Despite the court's more conservative composition, it ruled 6–3 in 2020 that the prohibition against discrimination with respect to sex in the Civil Rights Act of 1964 applied to gay and transgender workers; Justice Gorsuch wrote the opinion. The death of Justice Ginsburg in 2020, and the quick appointment by President Trump of Amy C. Barrett, a conservative in the mold of Scalia, gave the court a solid conservative majority that seemed likely to be unassailable for years to come.

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