Vermont Conversation: Have Supreme Court justices become 'politicians in robes?'

Rodney Smolla. Photo courtesy of Rodney Smolla

The Vermont Conversation with David Goodman is a VTDigger podcast that features in-depth interviews on local and national issues with politicians, activists, artists, changemakers and citizens who are making a difference. Listen below, and subscribe on Apple PodcastsGoogle Podcasts or Spotify to hear more.

“If the public sees judges as politicians in robes, its confidence in the courts — and in the rule of law itself — can only diminish, diminishing the court’s power, including its power to act as a check on the other branches,” retired Justice Stephen Breyer warned last year.

Many Supreme Court observers, and even its own dissenting justices, are wondering if what Breyer forewarned has now come to pass. The court has just issued a series of blockbuster decisions that mark it as the most conservative Supreme Court in a century.

In the past month, the court struck down the constitutional right to abortion, weakened the government’s ability to address climate change, undermined gun regulations and enabled public funding of religious schools in a case that will have a direct impact on Vermont. These decisions advance longtime goals of Republicans, who appointed six of the court’s nine justices.

Rodney Smolla has been analyzing and arguing before the Supreme Court for decades. On July 1, Smolla became the inaugural president of Vermont Law and Graduate School, formerly Vermont Law School. A longtime constitutional law professor and civil liberties litigator, Smolla has participated in a number of famous first amendment cases, including Hustler vs. Falwell, which was the subject of the 1996 movie, “The People Versus Larry Flynt.” He is the author of a textbook on defamation, numerous books and more than 100 articles. Prior to coming to Vermont, Smolla was dean and professor of law at Widener University Delaware Law School. He previously served as president of Furman University and was dean of the law schools at Washington and Lee University and at the University of Richmond.

“I honestly never thought I would see (overturning Roe) happen in my lifetime.” Smolla said. The decision will be “enormously disruptive to women across the nation that are now going to be severely hampered in those states that have immediately banned abortion.”

Smolla is concerned with “the willingness to overturn such a settled clinical precedent and to do it so quickly once there was a solid five justice conservative majority, to do it in the face of all of these various statements that some of the more recent appointees made that seemed to signal that they had respect for settled precedent.”

Have the justices become politicians in robes? Smolla replied, “We’re perilously close to that.”

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David Goodman

About David

David Goodman is an award-winning journalist and the author of a dozen books, including four New York Times bestsellers that he co-authored with his sister, Democracy Now! host Amy Goodman. His work has appeared in Mother Jones, New York Times, Outside, Boston Globe and other publications. He is the host of The Vermont Conversation, a VTDigger podcast featuring in-depth interviews about local and national topics. The Vermont Conversation is also an hour-long weekly radio program that can be heard on Wednesday at 1 p.m. on WDEV/Radio Vermont.

Email: [email protected]

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