Melissa Murray: Most of the country favors greater access to reproductive rights. So this idea of limiting access to abortion, and potentially limiting access to certain forms of contraception, is deeply out of step with democratic preferences. But as we have seen, even though you don’t have the majority of the public, you can still advance your cause.

Alex Lovit: Welcome to The Context, a podcast about the past, present, and future of democracy from the Charles F. Kettering Foundation. I’m your host, Alex Lovit. My guest today is Melissa Murray. She’s the Frederick I. and Grace Stokes Professor of Law at New York University, where she specializes in family law, constitutional law, and reproductive rights and justice.

She’s written for a wide range of academic journals and popular publications, including the Harvard Law Review, the Yale Law Journal, the New York Times, the Washington Post, and many others. She’s a legal analyst for MSNBC and is also one of the co-hosts of the podcast Strict Scrutiny, which is about the United States Supreme Court and the legal culture that surrounds it.

In 1973, the Supreme Court declared that the United States Constitution protected abortion rights. Forty-nine years later, in 2022, they changed their minds and said that state and federal governments were free to limit or ban abortion. Obviously, there’s a lot more to that story: how anti-abortion activists organized for half a century to influence the makeup of the Court; how it’s connected to the larger trend of a conservative Court overturning longstanding precedence; and what the effects are when, after half a century, constitutional protections for reproductive rights suddenly disappear.

Most Americans know the 2022 Supreme Court decision Dobbs v. Jackson Women’s Health, which overturned Roe v. Wade and ended federal constitutional protections for abortions. That decision was controversial from the start and hasn’t become more popular in the two years since it was released.

When the Pew Research Center polled Americans shortly after Dobbs, 57 percent of them disapproved of the decision; and now, two years later, 63 percent of Americans say abortion should be legal in all or most cases.

But for those of us who aren’t lawyers, it can be hard to evaluate the Court’s legal reasoning or to understand how much the current Supreme Court stands out from previous eras. The majority opinion in Dobbs was 79 pages long, with another 60 pages of appendices and concurrences. Most of us haven’t read all that. Thankfully, Melissa Murray is a legal expert and extremely skilled at translating legal principles into terms the rest of us can understand.

I came away from this conversation with a couple of important ideas. First, Murray efficiently dismantles the reasoning of the Dobbs decision. As she argues, where the Court claimed to be relying on an originalist understanding of legal history, they were drawing from a partial and distorted account of the history of reproductive rights in the United States. And where the Court claimed that removing protections for abortion rights was a victory for democracy, in other decisions they were simultaneously undermining democratic accountability.

The second thing I took away from this interview is that Dobbs is only one of the important precedents the Supreme Court has overturned in the last few years. Since the Trump Administration installed a conservative supermajority, the Court’s pace of overturning previous decisions has been, well, unprecedented.

Here at the Kettering Foundation, we support inclusive democracy and the rule of law. It’s pretty hard to have full citizenship rights if you don’t have full decisionmaking power about your own health and body. And although it’s important for all citizens to follow the same set of laws, that’s also true for the Supreme Court, which is supposed to maintain stability and is really not supposed to be a political institution attending to the interests of particular constituencies or ideologies.

Melissa Murray makes a compelling argument that the Supreme Court has gotten off track in the last few years, and she has some interesting ideas for how we can repair our institutions, protect reproductive freedoms, and create a more inclusive democracy.

Alex Lovit: Melissa Murray, welcome to The Context.

Melissa Murray: Thank you for having me.

Alex Lovit: So I thought a place to begin would just be to give listeners kind of a brief overview of the legal history of reproductive rights. That’s something you’re really a leading expert on, but what I thought I’d do is just attempt a brief summary, and you can tell me what I left out.

Melissa Murray: Okay.

Alex Lovit: So to give a short, reductive history of reproductive rights in the United States —

Melissa Murray: Sounds like the Supreme Court: a short, reductive history of the last 150 years. Amazing.

Alex Lovit: Well, I’ll try to be shorter than the Dobbs decision.

Melissa Murray: [Laughs]

Alex Lovit: During the first two centuries of the country’s existence, federal and state governments did restrict reproductive rights in various ways, including restrictions on abortion and, in some cases, even restrictions on communicating information about contraception. In 1965, in the case Griswold v. Connecticut, the Supreme Court recognized the constitutional right to privacy, including contraception. And then in 1973, in Roe v. Wade, those privacy rights were expanded to include abortion rights.

And then, for the next half century almost, Roe v. Wade protected reproductive rights in this country until it was overturned in 2022 in the case Dobbs v. Jackson Women’s Health. Dobbs said that Roe was overturned and that state and federal governments could restrict abortion rights — and in fact, many states have taken up that offer. Twenty-two states currently restrict abortions in ways that would have been impermissible under Roe, and 14 states have near-total bans on the procedure.

So that’s a very rough outline. You tell me: What are the one or two most important things that I left out there?

Melissa Murray: Well, so a couple things that you left out because it was a quick and reductive history. In the period before the American Civil War — so this is pre 1860s — we actually had wide — er, wider access to abortion. Women could terminate a pregnancy up until the point of quickening. Quickening was a kind of term of art: the point in gestation where the woman could feel fetal movement within her, when she knew she was quick with child.

So there was a fair number of terminations at that point, before quickening, and it’s really only after the Civil War that states really begin to crack down on women trying to either contracept or to terminate their pregnancies. A lot of that is due to two separate but not indistinct events.

One is the fact that the birth rate among native-born, Protestant, white women is plummeting in the wake of the American Civil War. And at this time, there’s rising immigration from other parts of the world, and it’s believed that these newly arrived Americans are much more fecund and fertile than their American sisters.

So there is, I think, profound demographic anxiety after the Civil War that the character and, indeed, complexion of the nation is changing and America will not be what it was before unless middle-class, native-born, Protestant, white women start having more children, keeping up with these newly arrived immigrants. So that’s a big part of the impulse to limit reproductive freedom.

Prior to the Civil War, women contracepted. Midwives and faith healers were very active, and they prescribed all kinds of herbal remedies for pregnancies that were unwanted. Many women contracepted or terminated pregnancies because childbirth was really harrowing. The more children you had, the more you exposed yourself to the possibility of really devastating medical consequences or even death. And so this was a life-and-death matter for many women.

The second issue that comes up after the Civil War which is related to the fact of those faith healers and midwives is that the medical profession is professionalizing. So this is the era in which people like J. Marion Sims are pioneering, as a separate and distinct field of medicine, obstetrics and gynecology.

1. Marion Sims is a guy who is operating in the period before the Civil War. He is pioneering techniques related to gynecological surgery. He’s doing it without anesthesia on enslaved women. So this is how he’s pioneering these techniques.

But he is part of this growing cadre of physicians who fancy themselves true professionals, as distinct from the midwives and faith healers, who are largely a class of women. And part of the impulse to criminalize and to prohibit contraception and abortion is to tamp down on those women medical healers and midwives and make room for these mostly male physicians to take the field as physicians.

So this is the beginnings of the American Medical Association. The medical profession is truly professionalizing, and a big part of that is creating a legal landscape in which they are boxing out these other participants.

Alex Lovit: Well, I really appreciate what you’ve added to that history there, in part because I think there’s been some contestation over who are the eugenicists with abortion rights —

Melissa Murray: Yes.

Alex Lovit: — some folks on the anti-abortion side claiming that abortion is connected with the eugenicist movement, is an attempt to suppress birth rates for —

Melissa Murray: That is totally wrong. So again, another faulty and flawed history from the anti-abortion movement. Margaret Sanger, who is a pioneer of the contraception movement — she, at the turn of the century, really pioneers access to birth control. She does it primarily because, one, she thinks that women ought to be able to have sex for pleasure, not simply for reproduction. That is a radical statement at the time.

She actually loses mainstream feminists. So the first-wave women’s-rights pioneers can’t really get down with Margaret Sanger because she’s talking about stuff that’s not really on their agenda. They’re interested in voluntary motherhood as a means of preserving women’s health, making sure women aren’t dying in childbirth because they’re having too many children.

Margaret Sanger is concerned about that, but she’s also concerned with sexual pleasure. And part of her interest in birth control is maximizing sexual pleasure and allowing women to time and space the number of children that they have. When Margaret Sanger loses those feminists, she has to find another constituency that she can get on board with, that can support her movement.

[The] eugenics movement is actually understood as a science at the time. This seems apocryphal to us now, but it genuinely was a science. Harvard has a eugenics department with prominent eugenicists who are on the faculty. The University of Virginia, where I attended undergraduate, is also another hotbed of eugenics theory and practice, with many professors very prominent eugenicists in the movement.

Sanger teams up with them because they’re scientists, and they give her movement the imprimatur of science and the validity and respectability that she craves and that she cannot get from the feminists because they’re no longer with her because of her interest in sexual pleasure.

She’s not interested in abortion at all, and neither are the eugenicists. They’re interested in birth control as a means of limiting population — and certainly as a means of perhaps limiting population among certain groups that they find are undesirable.

But their real interest in limiting certain forms of reproduction really focus[es] on sterilization. So that’s really where their interest in reproductive freedom arises — the eugenicists. Margaret Sanger is focusing on contraception. They’re mildly interested in that, but they’re really interested in sterilization. They’re not at all interested in abortion, and neither is Margaret Sanger.

So this idea that Justice Clarence Thomas has really pioneered — that abortion is a technology of eugenics and is a form of reproductive control that can lend itself to eugenic purposes — that’s not supported by the history at all. It’s really an attempt to graft two very separate movements, birth control on the one hand and abortion on the other, into one and to collapse them. They’re not collapsible, and they’re very distinct histories.

Alex Lovit: Yes. And in fact, as you pointed out earlier, the movement to limit abortion is, in some ways, an attempt to retain a white-majority population in the United States.

Melissa Murray: Yes.

Alex Lovit: It’s sort of the opposite of what —

Melissa Murray: It has its own eugenics flavor to it. I don’t think the eugenicists would call it that. But it’s certainly of a piece with the eugenics interest in, for example, limiting immigration from outside of the United States, which is a big part of the eugenics movement in the 1910s and 1920s, and then also the program of sterilization, but most famously is evinced in Buck v. Bell, that case from the 1920s where Oliver Wendell Holmes says that three generations of imbeciles is enough.

Alex Lovit: Well, so I think there you were kind of dismantling one of the Supreme Court’s arguments for Dobbs and, certainly, Clarence Thomas’s argument. I’d like to ask you to critique another one of the arguments the Court made in Dobbs, which is that it’s a pro-democracy ruling.

Melissa Murray: Yeah.

Alex Lovit: So to quote the majority opinion by Samuel Alito: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” You co-wrote an article entitled “Dobbs and Democracy,” which was published in Harvard Law Review this year. Your co-author was Kate Shaw, a law professor at U-Penn who is also one of your co-hosts on The Scrutiny podcast.

So I know I’m asking you to summarize an 80-page article here, but give us a taste of it. When the Court said that overturning Roe was a step towards democracy, what were they getting wrong about democracy?

Melissa Murray: So one, the Court seems to suggest that Roe v. Wade always suffered from democracy problems, or that those who would critique Roe v. Wade were always sort of focused on the degree to which Roe was anti-democratic. And I don’t know that that’s entirely true. When Roe is decided, it’s decided with a companion case, Doe v. Bolton, which examined a Georgia abortion statute — a reformed, liberalized statute that was also invalidated as unconstitutional.

But in the dissents from that companion case, Doe v. Bolton, Justice White makes mention of this idea that the people really should decide the question of abortion. And he’s really the only one saying it. Other commentators who are weighing in on the abortion cases are really focused on the question of whether the Court got the identification of a fundamental right correct. They’re really focused on this question of fundamental rights that are not explicit in the Constitution.

They’re not as concerned, in an explicit way, with this question of whether the decision is anti-democratic. That doesn’t come up, really, until the 1980s. So this is after the anti-abortion movement have failed to get a constitutional amendment that would overrule Roe and install the fetus as a person for purposes of the Constitution and constitutional rights.

When that effort fails, they pivot to other things. So one is a more incremental approach, sort of chipping away at Roe and the abortion right by allowing states to regulate abortion in particular ways to make it less accessible and more difficult to obtain.

The other way that they begin to respond to the availability of abortion is now they start reprising Justice White’s argument. And White mentions this in a case from the 1980s, Thornburg. He starts reprising the story that Roe is anti-democratic, and the anti-abortion movement really latches onto this.

And it’s not surprising. It’s at a time when states are trying to chip away at abortion access through these laws. So there’s lots of state activity, legislative activity ostensibly in the name of the people, and it harnesses very well to this anti-democratic logic.

But that’s a development that happens over time. This wasn’t what the critique of Roe was initially. Essentially in 1973, if they are critiquing Roe, they’re talking about whether the Court got “fundamental rights” right. That’s really what they’re talking about. So part of the article is disabusing this view that Roe has always been critiqued as anti-democratic. That’s not true. That develops over time.

The second level of the argument is there’s something deeply perverse about the Court consigning this issue to the democratic process at the state level at precisely the same time the Court, through its prior rulings, has made it virtually impossible for all of the people to register their democratic preferences at the ballot box. The Court itself has so contributed to the distortion of the electoral landscape that it makes the registering of democratic preferences much more elusive.

So the Court in 2019 blessed partisan gerrymandering, said that there was no role for federal courts to play in policing partisan gerrymandering. That’s essentially been a green light to the states to gerrymander with impunity.

And again, gerrymandering means that elected representatives at the state level and in Congress don’t necessarily have to be responsive to their constituencies. Their districts are drawn in certain ways such that majority will can be distorted. I think this is why, in the wake of Dobbs in places like Kansas, you get laws that are relatively restrictive in terms of abortion. Think of the Indiana law that was passed shortly after Dobbs was handed down.

But then, when individuals are asked to register their preferences directly in ballot initiatives or voter referenda, they vote overwhelmingly to preserve or even to expand reproductive freedom, even in red states. So representative government cannot capture that democratic impulse because of gerrymandering and all of that kind of distortion, but when the people get to do it directly, you see it show up. So that’s one of the things we criticize: the Court, through gerrymandering, has distorted the electoral landscape.

It’s also made it harder for certain groups to register their preferences through the blessing of voter suppression. The Court dismantled, in Shelby County v. Holder, the pre-clearance regime that would have required states that sought to change their voting laws to first pre-clear those changes with the Department of Justice or a three-judge panel. That cut down on a lot of suppressive voter laws.

Now, without that pre-clearance process, states are free to pass suppressive voter laws, and they can only be challenged after the fact. And that is the reason why we’re seeing laws like the ones in Georgia, for example, that prevent individuals from giving water to those waiting in line to vote. They’re intended to deter people from standing in line for a long time, and that deters them from actually registering their preferences at the ballot box.

So there is something deeply, deeply perverse about a court giving this issue over to the democratic process at precisely the moment the Court itself has made the process less receptive to true democracy.

Alex Lovit: Well, so I want to try to drill down a little bit on the relationship between the Court and democracy. So the Supreme Court likes to draw a distinction between the Legislature and the Executive. Those are the political branches of government, and the Court considers itself the non-political branch of government. But the story of how Roe got overturned is a political story.

Melissa Murray: Yeah.

Alex Lovit: It’s a decades-long organizing movement by the anti-abortion forces. They built a pipeline to encourage and evaluate conservative judges. They put political pressure on elected officials to appoint and confirm those judges. Calling that “democracy in action” might be inaccurate because most Americans disapproved of the Dobbs decision, but it’s at least politics in action.

So how do you think about political pressure on the Court? Are there lessons that abortion-rights advocates can draw from that history of the anti-abortion movement?

Melissa Murray: For this answer, I think I’m going to pivot to a really terrific book by Elizabeth Dias and Lisa Lerer called The Fall of Roe: The Rise of a New America that covers —

Alex Lovit: I just read that.

Melissa Murray: It’s a great book. They’re journalists, and it has a real journalistic flavor, and it’s comprehensive and incredibly detailed. And it covers both the political and the inextricably intertwined religious campaign to overturn Roe.

One of the things that they reveal is that this took decades of planning, and a lot of things just had to hit in the right way. Lots of people had to be in place. There were setbacks, there were failures, but they kept at it. And so this was a calculated 50-year campaign to overrule this decision.

I think there’s a lot for pro-choice folks to learn from that. They played a long game. The anti-abortion forces really played a long game, and they played it well — and they’re playing it now to preserve their win.

Most of the country favors greater access to reproductive rights. So this idea of limiting access to abortion, and potentially limiting access to certain forms of contraception, is deeply out of step with democratic preferences. But as we have seen, even though you don’t have the majority of the public, you can still advance your cause.

I think that’s one of the reasons why the Conservative movement, of which the anti-choice movement is part, really spent a lot of time not only capturing certain aspects of the political system — state legislatures, state governors’ mansions — rather than focusing on aspects of the federal government. And then they also really focused on the federal courts so that when they brought their cases, they had receptive judges to hear them.

This was a coordinated campaign. It wasn’t a one-off. They had to lay a foundation for years — they had to get the money; they had to grow their organization — and they did it very diligently and assiduously. And they continue to do it.

Part of the problem with Progressive interests is that they’re so diverse, and maybe even diffuse. There isn’t that kind of tightly knit, coordinated, coherent effort, and it makes it just really hard. A big tent is hard to kind of focus all of those things.

I think one of the things this book does so well is show how the Right really pulled together all of the disparate parts of its movement — the interests in deregulation, the interests in limiting abortion, the interests in focusing on the courts — brought it all together under one umbrella and made it work for every aspect of its agenda.

Alex Lovit: Well, let’s talk a little bit about how the political system does intersect with the judicial system. I’m thinking here about how federal judges are nominated and confirmed. So the Supreme Court is, of course, the most famous. But it’s not just the Supreme Court. It’s also federal district court judges and court-of-appeals judges.

Melissa Murray: Yes.

Alex Lovit: They need to be appointed by the president and confirmed by the Senate.

Melissa Murray: Yeah.

Alex Lovit: Maybe it’s unfortunate that the White House and the Senate are the two offices that can be claimed without majority support in the country. But anyway, that’s how it works.

This means that if the presidency and the Senate are controlled by different parties, the Senate might have an incentive to stall nominations and try to keep judicial vacancies open until their own party can fill them. That happened most famously in 2016, when the Republican-controlled Senate refused to schedule hearings on Obama’s Supreme Court nominee, Merrick Garland. And then four years later, the same Republican-controlled Senate — er, similarly Republican-controlled Senate — confirmed Amy Coney Barrett only a week before the election.

Since then, under Trump the Republicans had both the White House and the Senate, and under Biden the Democrats had both the White House and the Senate. So we haven’t really seen that split between the presidency and the Senate since then. Do you expect — if there is a partisan divide between those, do you expect that there will be a movement to hold seats open?

Melissa Murray: Oh, 100 percent. I think we’re already seeing this despite the fact that the Democrats have a bare majority in the Senate. To say that the Democrats have a majority is to really overlook the fact that there are at least two senators who often caucus with Republicans or go their own way.

So it’s often an ephemeral majority, and that means that there’s a lot of pressure on the Biden Administration about who they can put forth as judges. So Adeel Mangi, for example, who would be the first Muslim judge on the Third Circuit, has been stymied in committee — er, was stymied for a very long time because of opposition from Republicans in the Senate. Without the two Democratic senators on board, the Democrats had no hope or prayer of getting that through.

Even in circumstances where there isn’t controversy around a nominee, the thin majority means that the vice president, Kamala Harris, has actually had to step in and register a vote in a wide number of different policy arenas. More so than any other vice president in history she’s been the tie-breaking vote.

So it’s a majority, yes, but it’s a very thin majority, and perhaps a misleading majority if you think about the way in which Senators Manchin and Sinema have played their roles over the last four years. If there’s divided government in the upcoming election cycle, if the result of the upcoming election cycle is divided government, there will certainly be, I think, gridlocks on the question of judges, a desire to keep some of those seats open. We’re seeing this now.

For district court judges, the protocol has been the president nominates; but the home-state senators of that district court nominee offer their blue slips to show that they approve of the president’s choice. If they don’t offer or tender those blue slips, the nomination really stalls, makes it very hard for the president to get a nominee through at the district court.

That’s what happened at the Southern District of Florida. Florida, at this point in time, is a pretty red state, maybe hot pink in its complexion. Senators Marco Rubio and Rick Scott are the home-state senators there. It’s been very difficult for the Biden Administration to put forth nominees to the district courts in Florida, and there are a number of district courts in Florida that have significant vacancies. One is the Southern District of Florida.

The Southern District of Florida happens to be where Aileen Cannon, the judge who is overseeing the Trump Mar-a-Lago documents case, sits. She obviously handled some of the pre-trial matters involved in that case — handled them in a way that, I think, generated a fair amount of controversy and even a rebuke from the Eleventh Circuit.

And when it came time to assign that trial, it went into the wheel; but because there are so many vacancies that haven’t been able to be filled because Senators Rubio and Scott haven’t given their blue slips, there was basically a one-in-three chance when that case went into the wheel that the prosecution would get Judge Cannon. And in fact, they did.

And so whatever you see happening in South Florida in that Mar-a-Lago case, that has, as its root cause, the fact that the president cannot get his nominees through because there are two senators here from the home state who are from the opposite party who will not submit, or will not agree to, the president’s picks for those seats. So we’re already seeing this, and it will just be exacerbated if there’s divided government.

Alex Lovit: Is there anything we can do about that? If that’s a problem, and maybe a growing one, is there anything that can be done?

Melissa Murray: Well, I think as a matter of course in the past there was just sort of a general norm that part of winning an election — you know, elections have consequences: The president gets to nominate their picks. During the Trump Administration, I think for the most part the Democrats kind of hewed to that line. There were some very notable exceptions — you know, candidates who were viewed as so extreme that there had to be some sort of outcry.

But for the most part, there are people like Amy Klobuchar voting for President Trump’s nominees because — you know, “Wouldn’t be my pick. Wouldn’t be my Democratic President’s pick. But they’re fine, they’re qualified, and this is the president’s prerogative.”

We saw that with the Supreme Court for years and years and years, until roughly around the time that Robert Bork was viewed as too extreme to sit on the Court. Maybe we could go back to that moment. John Paul Stevens was nominated to the Court by Gerald Ford. It was one and done, like, “Yeah, seems qualified. From Chicago. Wears bowties. Sign me up. I’m voting for him.”

Alex Lovit: Well, speaking of norms that have been broken recently, let’s talk a little bit about stare decisis.

Melissa Murray: That’s quite a segue.

Alex Lovit: Stare decisis is Latin for “Let the decision stand.” You lawyers, you love your Latin. And basically what it means is that even if a court disagrees with previous rulings, they should be cautious about constantly overruling previous courts. That would be chaotic. It would make it hard for citizens to rely on the established law. It might put the courts under more political pressure.

But of course, sometimes overturning precedent is a good thing. For example, Brown v. Board of Education overturned Plessy v. Ferguson, and I think most Americans would say that that was a significant step towards America living up to its ideals of civic equality. But just because Brown was a good decision doesn’t mean that every decision overturning precedent is a good decision. How do you think about this principle of stare decisis? Where should it apply? What is its role?

Melissa Murray: The Court, in 1992 in Planned Parenthood v. Casey, actually identified a series of factors that courts should consider when determining whether or not to adhere to or depart from an [extant] precedent. Among the factors is whether the decision is proven unworkable, whether individuals have relied on it in their lives. [There’s] reliance interests.

I think there are about seven different factors, and they all sort of roughly cohere to “Is this super, super wrong and we have to correct it, or is it just unworkable? Have recent developments sort of made this precedent no longer in alignment with where the law is?”

It’s really meant to be a kind of corrective, and the Court’s overruling of Plessy and Brown might be understood along those lines. But the purposes of stare decisis, as you say, are to ensure predictability: that when people present themselves and present their claims in court they know what the background defaults are, and they can be assured that yeah, that’s where the court is going. That’s what they did before. You decide [likes alike], and that’s going to hold.

And it also, I think, prevents the Court from looking like its decisions shift with partisan changes — or personnel changes on the Court, for that matter.

This Court, I think, has really lost the thread with stare decisis. Even before the Court overruled Roe in 2022, you had Justice Clarence Thomas in a concurrence to a case called Gamble v. United States. The case was about double jeopardy. He had his own formulation for stare decisis. Forget Planned Parenthood v. Casey. He’s like, “There’s only one consideration that you should use when deciding whether or not to depart from precedent, and that formulation is: Is the prior decision egregiously wrong?”

Well, what does it mean to be egregiously wrong? That’s not an objective measure; it’s entirely subjective. And, lo and behold, what did Justice Thomas think was egregiously wrong? Basically, every decision decided as a matter of substantive due process under the 14th Amendment. So that would not only be Roe. It would be Griswold v. Connecticut, the 1965 decision that permitted the use of contraception. It would also be Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage in this country — on and on and on.

So the way this Court, I think, is thinking about it, or certain members of this Court, it’s much more subjective than I think we have seen in the past, where the Court tried to sort of put some objective parameters around it with those factors. And I think the result is that many Americans view the changes in the legal landscape as not being driven by law but being driven entirely by the political valence, the political preferences of a certain set of justices.

It is worth noting that this conservative 6-3 supermajority came into being in 2020. The first full term in which there was a conservative supermajority was October Term 2021.

In that term, the Court overruled Roe in the Dobbs decision. It expanded the 2nd Amendment in a really broad way in [Bruen v. New York State Rifle & Pistol Association]. So again, two really big decisions that effectively overruled Lemon v. Kurtzman and Kennedy v. Bremerton — that is, the “praying coach” case.

So in just one term they did the most in just stepping all over stare decisis. The following term, the Court overruled Grutter and Bakke and completely dismantled the legal regime around affirmative action. And then, in the most recent term, the Court overruled Chevron v. Natural Resources Defense Council and essentially ushered in a complete sea change in the way we think about administrative agencies and their charge to administer certain statutes.

Three years of a conservative supermajority, and in each of those three years it has overruled an extant precedent. We’ve never, ever seen anything like that in our history. Brown and Plessy is in 1954, and the Court doesn’t do anything else around the issue of race and segregation for some years.

In fact, in 1955, just after Brown is decided, there is a challenge from the state of Virginia around the state’s ban on interracial marriage. The case is called Naim v. Naim. The Court grants cert on it — but then thinks better of it, given the blowback to Brown. Tom Clark writes in a memo, “If we decide this case, it is going to be a ticking time bomb in the South.”

So they dismiss the case as having granted cert improvidently, and it’s not until 1967 in Loving v. Virginia that the Court takes up the question of interracial marriage. The idea that they would take that question up so soon after Brown seemed anathema to them. But we have a court now that is completely unfettered because it is a supermajority. They are unfettered by the norms that previously restrained other courts, and it’s like a YOLO court: They do what the want, they exercise their own preferences, and we all live with the consequences.

Alex Lovit: So you just mentioned a number of decisions in recent years that this Court has made that have overturned precedent, that have had major impacts on American law. Some of those got headlines. Some of them may not have gotten a lot of headlines but still will have impacts. Overall, the Supreme Court’s approval rating right now is as low as it’s ever been in the history of modern polling. A majority of Americans say that the justices are more ideological than they are impartial.

In your opinion, what does the path forward from here look like, or what should it look like? Is there a path towards a less politicized Court, or do we just need to get used to thinking of the Court as, essentially, a political institution?

Melissa Murray: So let me just say this. I think the polling data on the Court is really interesting, very revealing. I don’t think it’s entirely about the decisions. I think the Court likes to say, “The people are just mad about our decisions,” and, “All we’re doing is law,” and, “The people just need to get on board with what the law is.” No, I think the people recognize that the Court is overruling decisions with which it doesn’t agree, and other courts did not do this.

William Rehnquist, no liberal squish, nonetheless stayed the course with regard to Miranda v. Arizona in a case called Dickerson, and he said, “Yeah. I don’t love this case, but it’s a precedent.” It hasn’t proven unworkable. It hasn’t proven to be really problematic or out of alignment with other aspects of the law, and people have really come to rely on it. It’s pretty much baked into our system. It’s in all the TV shows, all the police procedurals. Everyone knows that you have a right to remain silent.

So this conservative justice — he dissented in Roe — was like, “Yeah, stare decisis is a real thing. It has to restrain us or else there’s no point to the system.”

I think people recognize that the Court is just doing their own thing with regard to precedent, and it doesn’t matter what came before. And that’s part of what is happening with regard to the polling, but I think another part of it is the behavior of certain justices.

If you’re worried that the Court is unduly political, and you’re concerned about these decisions, I think you’re probably also concerned when it becomes known that one of the justices is getting private-school tuition and private-jet travel and vacations, paid for by a billionaire who is part of a network that is pushing cases through the Court — cases that are aimed at deregulation of corporate interests, making the world easier for large corporations.

And then, lo and behold, in October Term 2023, you overrule a precedent that actually made it easier for agencies to regulate — basically, a [sot] to those deregulatory forces.

I think people can put two and two together. Americans aren’t morons. Does the Court appear political? Yes, because at least a couple of justices seem to have emotional-support billionaires who have real political interests in the Court’s work, and they seem to be cozying up to these justices.

So it’s not just the decisions, although I think the fact that the Court is just playing fast and loose with precedent is part of it. It’s they’re playing fast and loose with precedent, and they don’t seem to care what the optics of their associations mean for the public itself. So that’s a big part of it.

What’s the path forward for the Court? I think you could divest yourself of your attachment to your emotional-support billionaire. I think you could subscribe to a toothier code of ethics. Justice Kagan has, on her own steam, sort of come out in favor of a more forceful ethics code for the Court, better enforcement techniques, perhaps relying on lower-court judges that are appointed by the chief justice.

Any of these would be quick fixes, and I think they would be very welcome. But honestly, I’m not sure that those would do much to dispel the view that this is a court that has been captured by conservative interests, by corporate interests, and are basically in the bag for that agenda. And we all, again, have to live with the consequences, whether we subscribe to that or not.

Alex Lovit: As you were saying there, Americans aren’t morons and they’re drawing connections, that the Court’s decisions are having an impact on public opinion. But it is a little complicated to follow. The Dobbs decision came out while a Democrat was in the White House. According to a New York Times/Siena College poll in May, 17 percent of voters in swing states think that Biden was more responsible than Trump for the end of Roe. So there’s a little bit of a complicated maybe civic-education problem there.

Melissa Murray: Yeah.

Alex Lovit: If you want to have influence on the Court, that means you have to compete for the presidency. You have to compete for the Senate. Then that has to go along with all the other priorities that you might have for those offices. Do you have advice for listeners that are concerned about the Court, thinking about what they can do to make sure people understand what’s happening with the Court —

Melissa Murray: Yeah.

Alex Lovit: — and to build kind of that long-term movement that could have impact?

Melissa Murray: So the part you said about civics education, I think, really cannot be overstated. I’m an MSNBC legal analyst. This summer, Symone Sanders-Townsend, who is one of the hosts of a show on MSNBC, she and I went around the country talking to black women about their views of the upcoming election.

We talked to a cross-section of black women: people in the Gen X and older demographic, people who are millennials, people who are Gen Z and Gen Y. And one of the things that’s actually really interesting about talking to the younger women is that they have very real preferences in terms of the kind of policies they want to see, but they don’t have real knowledge of how government works.

They have a vague knowledge of — you know, the president is sort of at the top of everything. But checks and balances, three branches of government and how they work, that’s much more amorphous and less front-and-center for them.

At first, I was a little confused. At one point, someone said, “I wanted student-loan relief, and I didn’t get it.” And I was like, “Actually, you did get student-loan relief. Joe Biden passed an executive order that directed the Department of Education to forgive student loans under an act from the post 9/11 period. The Supreme Court invalidated it. It wasn’t Joe Biden; it was the Supreme Court. Your problem is with the Supreme Court.”

That just didn’t register for her: “Joe Biden promised it, and I didn’t get it.” Everything in between she didn’t understand or hadn’t appreciated. And it wasn’t surprising. That is the generation for whom we implemented No Child Left Behind. We started trimming back on certain electives in the public school curriculum, including civics and American government in favor of sort of back to basics: reading, writing, and arithmetic.

Those individuals are now at the point where they’re participating in the political process, but they don’t necessarily have the training or the know-how that earlier generations had as a matter of course. And I think it is a real problem. One way to sort of get what you want and to distort the information that the electorate receives and processes is to make sure they don’t have the tools that they need to do that processing. And I think you’re really seeing it.

My old boss, Justice Sotomayor, is really involved in a group called iCivics. Justice O’Connor was the one who introduced her to it. Justice O’Connor had been on the board of iCivics for years. Basically, it’s a private platform that uses video-games to, basically, introduce children to civics concepts.

It’s, I think, an important intervention, but it’s not a clear fix for what ails these [noise] . . . Hang on. My dog is coming in. Hold on a second. Come on in. Hi. How are you? Let me hold him. Stop jumping around.

Alex Lovit: He’s very cute.

Melissa Murray: He’s very cute, and he’s very active right now. Okay, stop. Okay. It’s a really important intervention, but I don’t know that it’s a panacea for this problem.

So when we’re talking about book bans and we’re talking about these efforts to limit what students learn, I think we have to take a more fulsome view of it. It’s not just certain books with certain content that’s about diversity or LGBTQ people. It’s about a much broader effort to limit the kind of information that the electorate has and is able to use to process the moment that they’re in. This dog is now squeaking things.

Alex Lovit: Melissa Murray, thank you for joining us on The Context.

Melissa Murray: Thank you so much for having me.

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Alex Lovit: The Context is a production of the Charles F. Kettering Foundation. I’m Alex Lovit, a senior program officer and historian with the Foundation. This episode was produced by George Drake, Jr. Kettering’s Director of Communications is Melinda Gilmore. If you enjoy the show, do us a favor and leave us a rating or a review wherever you get your podcasts, or tell a friend about us.

The Context is a biweekly podcast. So this is the point at which I’d usually be saying we’ll have another conversation about democracy in this feed in two weeks. But two weeks from today is the U.S. presidential election, and there’s one more conversation we wanted to release before then about a plan you may have heard of: Project 2025.

So look for another episode of The Context next week with what I think is a really informative conversation about Project 2025, what’s new about it, and what in it might be a threat to American democracy. So come on back for another conversation about democracy in this feed in one week.

Alex Lovit: The views expressed during this program are critical to us having a productive dialogue, but they do not reflect the views or opinions of the Kettering Foundation. The Foundation’s broadcast and related promotional activities should not be construed as an endorsement of its content. The Foundation hereby disclaims liability to any party for direct, indirect, implied, punitive, special, incidental, or other consequential damages that may arise in connection with this broadcast, which is provided as is and without warranties.

Transcripts are created on a rush deadline by a Kettering Foundation contractor and may contain small errors. The authoritative record is the audio recording.