The U.S. Supreme Court resumed in-person oral arguments in 2021 after a term marked by a non-retirement and rulings upholding Obamacare and siding with Republicans on voting rights.
The conservative-majority court is now immersed in blockbuster disputes over gun restrictions and abortion rights, and more emergency coronavirus-related appeals.
Bloomberg Law runs down some of the top high court moments of the year.
Return to Bench
On Oct. 4 the court’s new marshal Gail Curley—the second woman to hold the position—gaveled in the first in-person session since spring 2020 when coronavirus forced the court to close.
Supreme Court Returns With Skeletal Audience, Piped-in Questions
Although much about the courtroom oral argument proceeding was familiar, Brett Kavanaugh participated remotely after contracting the virus. His questions were piped in.
Justice Kavanaugh Tests Positive for Covid Ahead of New Term
Though confirmed almost a year earlier, Oct. 4 also marked the first time Amy Coney Barrett heard arguments in the courtroom. She sat in the customary seat for the junior justice—to the farthest left of Chief Justice John Roberts—and was an active questioner during argument in the two cases heard that day.
Thomas Questions
Clarence Thomas, who celebrated 30 years on the high court Oct. 23, asked more questions during remote arguments starting in May 2020 than he had in years. The most senior associate justice was known for not asking questions during arguments, saying he thought his colleagues asked enough of them. He once went a decade without doing so.
To accommodate the remote setting, the justices changed their question format so each took turns in order of seniority. That shift apparently prompted Thomas to speak up, which he’s continued to do with the court returning in person and resuming a free-for-all question format.
Clarence Thomas Waited 30 Years for Court That Thinks Like Him
Female ‘Tenth Justice’
Just prior to the court’s November arguments over the Texas six-week abortion ban, former Cooley partner Elizabeth Prelogar was confirmed as the Biden administration’s top lawyer at the Supreme Court.
Prelogar is the second woman U.S. solicitor general, who is often called the “tenth justice” because of the government’s influence on cases before the court. Justice Elena Kagan, Prelogar’s former boss, was the first woman to hold the office.
Prelogar Making Solicitor General Debut in Texas Abortion Cases
Sticking Around
Democratic-appointed justice Stephen Breyer has resisted pressure from progressives to retire so Joe Biden can appoint a younger successor.
The 83-year-old Bill Clinton appointee in his 27th term hasn’t said when he’ll step down. It could be the last chance for a Biden Supreme Court nomination with Senate Democrats expected to face a tough road in November midterms. They barely control the chamber and the confirmation process now.
Liberals Blast Breyer’s ‘Ego’ as He Balks at Retirement Pressure
Shadow Docket
Criticism of the emergency docket—dubbed the shadow docket—grew louder. Complaints covered everything from the timing of the court’s orders to the lack of reasoned opinions behind outcomes.
Justice Samuel Alito defended the court in a September speech. The “catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its way,” he said. “And this portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”
Alito Rejects Criticism of Texas Case as Overturning Roe v. Wade
The justices appeared to respond to some criticism by taking the unusual step of moving two cases from the shadow docket to the “merits docket” for normal consideration. One was the federal government’s attempt to intervene over the Texas abortion ban. The other, Ramirez v. Collier, deals with religious advisers in the execution room. And on Dec. 22 the court said it would hear arguments Jan. 7 in the emergency litigation over Biden’s vaccine policy, the latest sign the justices might be heeding critics.
Publicity Tours
The 6-3 conservative majority cemented by Donald Trump spawned progressive calls to “reform” the court, including adding seats or imposing term limits. While a Biden-appointed commission studied the matter, three justices urged the public not to view the court as just another political institution.
Barrett, Flanked by McConnell, Says Supreme Court Not Partisan
“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” Barrett reportedly said at a Sept. 13 speech in Kentucky. Thomas and Breyer struck a similar tone in their own speeches, insisting the justices aren’t acting according to their personal preferences.
Thomas Latest Justice to Insist Court Isn’t Political Entity
Guns, Abortion
The justices appeared primed after the Nov. 3 argument to strike down a state restriction on concealed-carry permits in New York State Rifle and Pistol Association v. Bruen.
“Regardless of what the right is, it would be surprising to have it depend upon a permit system,” Chief Justice John Roberts said during argument. “You can say that the right is limited in a particular way, just as First Amendment rights are limited, but the idea that you need a license to exercise the right, I think, is unusual in the context of the Bill of Rights.”
But the disputes over abortion rights took center stage. The justices declined to halt the six-week Texas ban, citing procedural quirks, and found a narrow path for abortion providers to move forward with their challenge. But the ban continues to be in force and it’s unclear how much, if at all, that narrow path will provide relief for enforcing the constitutional abortion right recognized in 1973’s Roe v. Wade.
Supreme Court ‘Green-Lit’ Texas Abortion Ban, Clinic Lawyers Say
Though the Texas law has effectively overruled Roe in the state, the real test of Roe‘s staying power is Mississippi’s Dobbs v. Jackson Women’s Health Organization. During arguments Dec. 1, a majority of the court appeared ready to undo the 50-year precedent and the viability line upheld in 1992’s Planned Parenthood v. Casey, and leave abortion rules to the states. A decision is expected by July.
Supreme Court Justices Suggest Sweeping Pullback on Abortion
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