Chemerinsky: The most significant Supreme Court cases of 2021
Erwin Chemerinsky. Photo by Jim Block.
Although 2021 certainly had important developments in the U.S. Supreme Court, there also was a sense of it being a year of waiting for the blockbuster cases to come in 2022 on abortion rights, the Second Amendment, and separation of church and state. As we look back at the court in 2021, what was most significant?
What it didn’t do and what didn’t happen
Perhaps what was most important is what the court didn’t do in 2021. It did not become involved in the 2020 presidential election despite efforts by supporters of Donald Trump to have the court take cases concerning it. The court also did not declare unconstitutional the Patient Protection and Affordable Care Act, instead dismissing the constitutional challenge for lack of standing in California v. Texas. This is crucial because 21 million people receive their health insurance through the act, and we remain in the midst of one of the worst public health crises in American history.
Justice Stephen G. Breyer did not retire in 2021, despite many liberals encouraging the 83-year-old jurist to step down. No doubt, there will be renewed calls for Breyer to resign at the end of this term and the November 2022 elections, which could change the party controling the Senate.
The court’s approval ratings and the justices’ response
In late September, a Gallup poll showed the Supreme Court’s popular approval rating at a new low: only 40% approved, and 53% disapproved. In that same month, some of the justices gave speeches defending the court.
Justice Amy Coney Barrett gave a speech at the McConnell Center at the University of Louisville proclaiming that justices are not a “bunch of partisan hacks,” and she denied that justices are following their personal political beliefs. A few days later, Justice Clarence Thomas gave a speech at Notre Dame Law School, echoing Barrett’s view that justices do not act on political ideology or their own beliefs when making decisions. And Justice Samuel A. Alito Jr. gave a speech, also at Notre Dame, defending the court. He sharply attacked media coverage of the court and said the justices are not a “dangerous cabal.”
Justice Breyer, as part of promoting his new book, The Authority of the Court and the Peril of Politics, gave many interviews and often said the court is not made up of “junior college politicians.” But at the end of September, Justice Sonia Sotomayor, in a program for the ABA, conveyed a very different message. “There is going to be a lot of disappointment in the law, a huge amount. Look at me, look at my dissents,” she said.
It is not clear what the court’s low opinion ratings will mean in the long term or whether it will change. Nor is it apparent that the justices’ defense of the court will matter in the public’s esteem of the institution.
Is it still the Roberts court?
Obviously, John G. Roberts Jr. remains the chief justice and has all of the powers of that office, such as assigning the opinion when he is in the majority. More important, he is a conservative on a bench with a conservative majority.
Yet it clearly also is not the Roberts court in the same way as two years ago when Justice Ruth Bader Ginsburg was still on the court. Roberts was the swing justice then, the ideological middle of the court with four justices more liberal and four more conservative. But now there are five more conservatives than Roberts, and they don’t need him to create a majority.
This was evident in cases involving religious challenges to restrictions imposed by state governors to limit the spread of COVID-19. Twice while Justice Ginsburg was on the court, the justices voted 5-4, with Roberts joining the four liberals, to reject the religious objections and uphold the governors’ actions. But after Justice Barrett joined the court, twice the court, 5-4, came to the opposite conclusion, with Roberts and the liberals in dissent.
This was seen in April 2021 in Tandon v. Newsom. The restrictions imposed by California Gov. Gavin Newsom limited the number of households that could gather in any home. The regulation said no more than three households of people could gather in a home, and it did not distinguish between secular and religious activities. It did not matter whether people were gathering to watch the Super Bowl or for a book club or to worship. Plaintiffs, who wanted to gather in a home for religious worship, sought to have this declared unconstitutional and enjoined.
The Supreme Court, 5-4, said the request for a preliminary injunction should be granted. The majority was Justices Thomas, Alito, Neil M. Gorsuch, Brett M. Kavanaugh and Barrett. The per curiam opinion was emphatic about the need to treat religion the same as the most leniently regulated comparable secular activity.
An even more dramatic area where Roberts was in dissent involved the Texas anti-abortion law that prohibits abortions after the sixth week of pregnancy and authorizes civil suits for $10,000 against doctors who perform abortions or those who aid or abet them. On Sept. 1 the high court, 5-4, refused to issue a preliminary injunction against the law, with Roberts joining the three liberal justices in dissent. On Dec. 10, in Whole Woman’s Health v. Jackson, the court, 8-1, allowed a lawsuit to go forward against the Texas officials who license health care facilities. But the court ruled 5-4, with Roberts and the liberal justices in dissent, that state officials cannot be sued if they play no role in enforcing or implementing the law. The court provided a roadmap, over Roberts’ vehement dissent, for Texas and other states to immunize their laws violating rights from federal court suits for injunctive relief.
I regard the most important decision of 2021 to be Brnovich v. Democratic National Committee, which greatly weakened the protections of the Voting Rights Act of 1965. Section 2 of the act prohibits state and local governments from having election systems that discriminate on the basis of race. Congress amended this law in 1982 to provide that proof of a racially discriminatory impact is sufficient to establish a violation of the law.
But in Brnovich, the Supreme Court, 6-3, made it much more difficult to bring suit to succeed in suits under Section 2 of the Voting Rights Act. In a crucial part of the opinion, Justice Alito said the model for identifying racial discrimination based on disparate impact that is used to interpret many other federal civil rights laws was “not useful here.”
Justice Alito went on to list five factors that courts must consider when a voting rule is challenged under Section 2. First, there must be proof of a significant burden on voting. Second, the law has to significantly deviate from the rules of voting that were in effect in 1982, the year that the Voting Rights Act was amended by Congress. Third, there has to be evidence of a significant racially disparate impact. Fourth, courts must look at the other opportunities to vote provided for by the state’s overall system; the more other ways exist to vote, the less any particular restriction is objectionable. Finally, courts must consider the state’s interests served by the rule—such as preventing fraud.
Each of these factors individually, and all five taken together, will make it much harder for plaintiffs to prove a violation of the Voting Rights Act. This was the central point of Justice Elena Kagan’s dissent, which lamented that none of these factors appear in the law. Nineteen states, all with Republican-controlled legislatures, had as of late September adopted laws in 2021 that will make voting harder and that are alleged to have a racially discriminatory impact. The court’s decision in Brnovich will make it much more difficult to challenge those restrictions and these laws could play a decisive role in the 2022 and 2024 elections.
The issue of abortion dominated public perception of the court more than any other topic. In May, the court granted review in Dobbs v. Jackson Women’s Health Organization, which involves a Mississippi law that prohibits abortions after the 15th week of pregnancy. The court taking the case signaled a majority likely willing to reconsider Roe v. Wade and its holding that the government cannot prohibit abortions before viability, about the 24th week of pregnancy. On Dec. 1, the court heard oral arguments in Dobbs and the consensus of observers, conservative and liberal, is that there is a majority on the court to uphold the Mississippi law and perhaps to completely overrule Roe v. Wade.
Also, the court allowing the Texas anti-abortion law to go into effect on Sept. 1 and its refusal again to enjoin it in its Dec. 10 ruling sends a strong signal that Roe is in serious jeopardy. No matter what else the court does in 2022, nothing will gain greater attention than its forthcoming decision in Dobbs and what it rules as to the future of abortion rights in the United States.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014) and The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020). His latest book is Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights (Liveright, 2021).
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.