SARA TOTH – EDITOR
When Amy Coney Barrett took her seat on the Supreme Court on Oct. 27, 2020, it solidified a 6-3 conservative majority on the court. Many, including legal scholar Melissa Murray, predicted a “real lurch to the right.” Now, after the conclusion of what Murray described as a “pretty brisk term,” she’s not sure that lurch happened. Yet.
“To be quite clear, I think we did see some movement to the right; it may not have been as dramatic as predicted, but there is definitely a rightward drift to the court,” said Murray, the Frederick I. and Grace Stokes Professor of Law at NYU School of Law, where she teaches constitutional law, family law, criminal law and reproductive rights and justice.
She pointed to news stories arguing that the Roberts Court is focused on consensus, achieving unanimity in surprising places and maybe not as partisan as expected.
And she thinks those takes “are a little overstated.”
“This is still a conservative court, or a reliably conservative court, and the places where they achieved unanimity were pretty limited. And what they achieved consensus on was quite limited,” she said. “Instead, what we did see were really significant decisions that went along traditional ideological lines.”
Prior to joining the NYU Law faculty, Murray was the Alexander F. and May T. Morrison Professor of Law at the University of California, Berkeley, where she received numerous awards and served as interim dean of the law school. She will deliver the 17th annual Robert H. Jackson Lecture on the Supreme Court of the United States, in conversation with John Q. Barrett, professor of law at St. John’s University. Their discussion will take place at 1:30 p.m. Thursday, July 22 on the CHQ Assembly Video Platform.
A member of the American Law Institute and the New York Bar Association, Murray clerked for Sonia Sotomayor, then a judge of the U.S. Court of Appeals for the Second Circuit, and Stefan Underhill of the U.S. District Court for the District of Connecticut.
Decisions at the close of the court’s term do seem to indicate a sharper turn to the right in the future — one ruling limiting the ability for minorities to challenge state laws they believe discriminate under the Voting Rights Act, and another invalidating a regulation in California that required charities to disclose donors — and next term Murray has her eyes on Dobbs v. Jackson Women’s Health Organization, which deals with the constitutionality of a 2018 Mississippi state law that banned abortions after the first 15 weeks of pregnancy.
It’s a case that, given the conservative majority, could dismantle Roe v. Wade entirely — but not at once.
“I do think it will continue the conservative move toward chipping away at Roe incrementally such that, in the near future, with another challenge, I think it will be very easy to completely eviscerate Roe,” Murray said. “And you know, that’s a standard move. The Roberts Court has done it — it’s not been a court where there’s just an automatic overruling of some past decision, but rather, (it happens) over time.”
That “chipping away” has happened, and is happening, with voting rights, Murray said — like the 2009 case of Northwest Austin Municipal Utility District Number One v. Holder, and 2013’s Shelby County v. Holder — and Roe could follow a similar path.
Chautauqua’s Robert H. Jackson Lecture — named in honor of the Jamestown lawyer, Supreme Court justice, and Nuremberg chief prosecutor — every summer features a leading expert discussing the Supreme Court, the justices, signal decisions, and related legal developments. And just as important as the decisions happening in America’s highest court, are the rulings handed down in the lower federal courts, Murray said.
“Much of the action that really affects ordinary Americans happens in the lower courts — the federal trial courts and the U.S. Circuit Court of Appeals, as well as state courts,” she said. “We rarely talk about those, but there are major access-to-justice questions that are happening in those courthouses, lots of questions about the diversity and composition of both the federal judiciary and the state-level judiciaries. That should occupy our attention as much as the Supreme Court.”