Eight justices of the US supreme court donned their black robes and returned to their austere, column-lined courtroom on Monday at the start of a new judicial term that has the potential to radically transform fundamental aspects of American life, from accessing abortion to carrying guns outside the home.
It was the first time since the pandemic began that the justices had gathered in person for oral arguments. The ninth justice, Brett Kavanaugh, attended remotely, having tested positive for Covid-19.
Monday’s convening of the court carried another important first: it marked the start of the first full term with all three of Donald Trump’s appointees in place.
The presence of Kavanaugh, Neil Gorsuch and Amy Coney Barrett, who replaced the court’s liberal bastion, Ruth Bader Ginsburg, gives the conservative majority an almost unassailable 6-3 stranglehold over the court. What they choose to do with that power could have seismic consequences.
The first day’s business offered little clue as to what could come. The justices heard arguments in two relatively low-profile cases, a water rights spat between Mississippi and Tennessee and a criminal case dealing with the technicalities of sentencing.
But that should not belie the momentousness of what lies ahead. The court has decided to hear several cases that go to the heart of the most contentious US social issues – a choice of docket which in itself suggests a new confidence on the part of the conservative wing.
Top of the list of hot-button cases that will be considered this term, starting on 1 December, is Dobbs v Jackson Women’s Health, dealing with a new Mississippi law that seeks to ban most abortions at 15 weeks of pregnancy.
Were the court to allow the law to stand, it would deal a severe blow to its own landmark 1973 ruling, Roe v Wade, which legalised abortion nationwide at the point of foetal viability, normally set at around 23 to 24 weeks.
Liberal jitters around the case have been heightened by the court’s 5-4 ruling last month to allow an even more extreme anti-abortion law to go ahead in Texas even though it flagrantly violated existing constitutional law.
The Texas law bans abortions from about six weeks in pregnancy, and by refusing to block it the highest court has in effect negated the constitutional rights of more than 6 million women in Texas.
The gun rights case the court has agreed to take is no less contentious. The first major gun case before the court since 2008 – when the justices affirmed an individual’s right to keep guns at home for self-defence – is based on a New York state law that tightly restricts the carrying of concealed handguns outside the home.
Advocates for gun control fear the conservative majority could unleash the carrying of guns outdoors, aggravating an epidemic of gun violence at a time when the murder rate is on the rise.
Progressive observers are also anxiously watching to see whether the court will dive back into the vexed issue of affirmative action on college campuses.
The court has allowed colleges to take race into account in admissions procedures, but if the current panel considers an appeal against Harvard University’s treatment of Asian American students there are fears the conservative justices will use their newfound strength to ban the practice.
Even before the new term begins, the rightwing supermajority imposed by Trump has sent shockwaves across the nation, damaging the court’s reputation for impartiality and legal fairness.
A recent Gallup poll found that approval of the way the nation’s most powerful court handles its job has slumped to a 20-year low with only 40% of Americans applauding its conduct, down from 63% in 2000.
Questions about the increasingly partisan posture taken by the conservative majority and its use of the unaccountable “shadow docket” to issue emergency rulings are being raised across the political and legal spectrum. Barrett, the conservatives Samuel Alito and Clarence Thomas and the liberal Stephen Breyer have recently insisted they are not politically motivated, claims greeted with widespread skepticism.
Hakeem Jeffries, a prominent Democratic member of Congress, pondered on the eve of the court’s new judicial term: “Does it have any legitimacy left?”
His concerns were echoed by Donald Ayer, a top Department of Justice official under two Republican presidents, Ronald Reagan and George HW Bush.
In a scathing opinion article for the New York Times, he lambasted an “out-of-control court” which he said had “lost touch with its mission and must be stopped from … radically altering our system of government”.
