14.1: Introduction

Amy Coney Barrett is sworn in as a Supreme Court justice by Justice Clarence Thomas, as Barrett’s husband Jesse and President Donald Trump look on.

On Amy Coney Barrett is sworn in as a Supreme Court justice by Justice Clarence Thomas, as Barrett’s husband Jesse and President Donald Trump look on. May 2, 2022, a leaked draft of a majority opinion written by Supreme Court Justice Samuel Alito was published by the news website Politico. The leak confirmed what court-watchers had long speculated: the Supreme Court was about to overturn its 1973 decision in Roe v. Wade, which had declared the right to abortion constitutionally protected. A month later, the reversal became official. The court ruled in Dobbs v. Jackson Women’s Health Organization that no such right exists in the Constitution, and that Roe was “egregiously wrong” for having claimed otherwise. The legality of abortion was once again a question for the states to decide.

The Dobbs ruling was a landmark victory for pro-life advocates, who had spent nearly half a century attempting to reverse Roe. Although Dobbs was technically a 6–3 decision, only five justices—the barest majority— supported overturning Roe. The critical fifth vote belonged to Justice Amy Coney Barrett, who had been nominated by President Donald Trump and confirmed by the Senate in October of 2020 to replace the recently deceased Justice Ruth Bader Ginsburg. Nominating Barrett (a staunch conservative) to succeed Ginsburg (widely considered the court’s archliberal) made the nomination particularly controversial.

Compounding the controversy was the fact that Ginsburg’s death had occurred less than two months before the 2020 presidential election. At the time, Democrats contended that the vacancy should not be filled until after the presidential inauguration in January (which might usher in a new president), while Republicans asserted Trump’s right to nominate a replacement at any point during his presidency. This disagreement was the exact opposite of the one which occurred in 2016, when Republicans argued that a vacant Supreme Court seat should be left to the next president to fill and Democrats insisted that then-President Barack Obama was well within his constitutional authority to nominate a new justice.

The Dobbs leak was a rare moment of transparency for the federal judiciary, generally the most mysterious branch of America’s national government. Most of its work occurs out of the public eye. No cameras are allowed in the courtroom while the Supreme Court is in session, though audio recordings are permitted. Its deliberations and rulings are cloaked in the complexity and opaqueness of the law. Its justices do not crave the spotlight the way presidents and members of Congress do, nor do they endorse or support parties or candidates, preferring to maintain an aura of impartiality. In these and other ways, the judicial branch appears far less political than its legislative and executive counterparts, and federal judges strive to maintain that perception.

Yet in key moments—the death of a justice, the nomination of his or her replacement, a landmark ruling—the federal courts suddenly intrude upon America’s political consciousness. These intrusions often spark bitter disputes over the court’s intervention (or nonintervention) in areas where many citizens feel they shouldn’t (or should) intervene. What was once indisputably the weakest branch has evolved to profoundly shape public policy in the United States. Notwithstanding its cultivated image of aloofness and neutrality, the federal courts and their judges are anything but apolitical.