Author: Helen Knowles Associate Professor State University of New York at Oswego
This is a great question to stimulate student discussion online and in the classroom. Are statements being issued by the Supreme Court of the United States, near a presidential election that could be considered political rather than legal by justices?
This blog post contains discussion ideas that I use to guide students through this topic. My goal is to help students understand the issue using useful concepts, without referring to partisan political views.
First Monday in October: A New Term
The Supreme Court of the United States begins its new “Term” every year on the first Monday of October. This is a tradition. This is the equivalent to its academic year.
It seems like West Wing is making a comeback. I suggest that students learn about the 13-episode First Monday series on CBS in 2002. You can even find full-length episodes online for free.
Although the series was unsuccessful, it can spark a conversation between students about their knowledge of the Supreme Court. Students can then ask questions and get valuable insights into the Court’s workings.
New Supreme Court Nominee
The first Monday of each Term is when the justices hear oral arguments. “First Monday” is not a headline that often makes the news. However, the circumstances made Monday, October 5, 2020, a different day.
Nine days prior, President Trump appointed Judge Amy Coney Barrett as the Supreme Court’s vacant seat. This opportunity was created when Justice Ruth Bader Ginsburg died on September 18, 2020. Her death had very significant implications.
Since “RBG”, a pop culture icon, has become a hugely important figure in recent years I encourage students to share what they know about her. It’s an interesting exercise.
RBG, a liberal icon, will be replaced by the conservative Judge Barrett. This will change the Court’s ideological makeup in a conservative direction.
This would be an excellent opportunity to show the CNN documentary RBG, which is 90 minutes long. Part of the documentary demonstrates how the Court has evolved ideologically over the years.
Discussion of Tough Topics and Problems
Most commentators immediately focused their attention on Judge Barrett’s views regarding abortion. Justice Ginsburg spent her entire career emphasizing equality and women’s right.
It is not an easy subject to teach. It is a good idea to explain to students, in basic terms, that the Court has considered abortion rights to be part of a woman’s liberty since 1973.
RBG believed this was the wrong way of viewing these rights. This is why I tell my students all the time. She believed abortion was about equality. It is interesting to see the reactions of students.
Ask students why RBG is important to them. Remind them that Barrett was not the first female justice to hold this view.
In 1973’s landmark Roe v. Wade decision, the Court established a woman’s constitutional right of abortion. It was widely agreed that Judge Barrett would be a critical vote to reverse that decision.
Fewer commentators focused on Justice Barrett’s impact on LGBTQ rights. Two justices did something in this year’s case that suggested that more attention should be paid to that effect.
I would emphasize that they did something very unusual. I’d like to go back to First Monday. It failed partly because the subject matter was too boring.
The Law for Same-Sex Marriage
The Court decided Obergefell V. Hodges on June 26, 2015. This was a landmark case. It overturned state laws that forbade same-sex marriage. This decision opened the door to equality in marriage across the country. Legally, gay couples can marry. States cannot make laws that prohibit them.
Obergefell was the latest of a series of important decisions that expand the rights of the LGBTQ community. Justice Anthony M. Kennedy provided the crucial vote in each of these decisions. In all cases, he also wrote the majority opinions. Justice Kennedy retired in 2018. Justice Brett Kavanaugh, a conservative judge, succeeded Justice Kennedy.
My knowledge of Justice Kennedy is a key component of my teaching in these cases. It is always fascinating to me (and my students too) that Kennedy has announced multiple times the decisions in LGBTQ cases on June 26, which is the same day.
The Future of Same-Sex Marriage
Obergefell’s ruling was 5-4. Justice Ginsburg was part the 5-justice majority. Kennedy’s retirement and her death have changed the Court. The rights of supporters of marriage equality are not guaranteed. Changes in the Court’s personnel could jeopardize their rights.
Does this mean Obergef is now?