Jerry Kremer

The score will too often be 6-3 in the Supreme Court


We live in a world where sports matchups of almost any kind are totally unpredictable. Whether it’s football, baseball, basketball or hockey, a game is frequently decided in the final minutes or seconds. In the legal world, many cases can go either way as well, depending on the law or the facts. But there’s one place where, it’s safe to say, in many key cases, the score will be 6-3. I refer to the United States Supreme Court.
In the next four months, the court will be making decisions on such topics as abortion, affirmative action, immigration, gun rights and congressional redistricting. You don’t need a scorecard to figure out what the results are likely to be, because several of the nine justices have telegraphed their views to the outside world long before the cases will be argued in front of them.
A look back at history shows that this isn’t the first court majority whose legal views were well known to the outside world. From 1953 to 1969, the court was led by Chief Justice Earl Warren. Unlike any before it, the Warren Court dramatically expanded civil rights, civil liberties and the powers of the court itself. It ended racial segregation and state-sanctioned prayer in public schools, ensured equal representation in state legislatures and paved the way for the legalization of abortion. The Warren Court was one of the more liberal courts in judicial history.
In contrast, the court led by Chief Justice William Rehnquist, from 1986 to 2005, moved to the right, giving states more power, striking down provisions of the Violence Against Women Act and, in 2000, famously ruling that George W. Bush had been elected president. To the surprise of many, the Rehnquist Court upheld Roe v. Wade, which granted women the right to have an abortion. Given the fact that this court had among its members Antonin Scalia, Sandra Day O’Connor, Clarence Thomas and Anthony Kennedy, it’s no wonder that it was unpredictable when it handed down rulings on cases with strong nationwide interest.
The current court is headed by Chief Justice John Roberts, but it is dominated by five justices who have already made clear where they stand on cases already argued and yet to come. Last September, Justice Amy Coney Barrett, speaking at the University of Louisiana, said that the court is “not a bunch of partisan hacks.” She warned that “justices must be hyper-vigilant to make sure that they are not letting their personal biases creep into their decisions.” She made that speech after voting to uphold a Texas law that bars abortions after six weeks.

Anyone who believes that Justices Barrett and Thomas are independent thinkers is mistaken. In 2006, Barrett, then a law professor at Notre Dame, signed a full-page ad in the South Bend (Ind.) Tribune by St. Joseph County Right to Life, stating that it was “time to put an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.” At her congressional confirmation hearing, she waffled, saying only that Roe v. Wade had been affirmed many times. This spring, when the court rules on a Mississippi law prohibiting abortions after 15 weeks, you don’t have to guess where Barrett will stand.
The court’s longest-serving justice is Clarence Thomas. According to The New Yorker, Thomas’s wife, Virginia, is involved with a number of organizations that file briefs before the court opposing affirmative action and abortion, favoring gun rights and offering strong opinions on many other current cases. One of the cases now before the court is a suit by the New York State Rifle & Pistol Association to overturn a New York City law that places limits on carrying guns outside the home. Thomas’s expected opinion, to throw out the law, won’t help Mayor Eric Adams in his efforts to curb gun violence.
During my career as an attorney, I have always had the greatest respect for our judiciary and the court system in general. But it saddens me to think that some of the most consequential cases in our lifetime are destined to be decided by that 6-3 margin.

Jerry Kremer was a state assemblyman for 23 years, and chaired the Assembly’s Ways and Means Committee for 12 years. He now heads Empire Government Strategies, a business development and legislative strategy firm. Comments about this column?