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The Supreme Court is at its most conservative now from the last 75 years


The U.S. Supreme Court officially reversed Roe v. Wade yesterday, declaring that the constitutional right to abortion upheld for nearly half a century no longer exists. Writing for the court's conservative majority, Justice Samuel Alito said that the 1973 ruling and repeated subsequent high court decisions reaffirming Roe must be overruled because they were egregiously wrong and not grounded in the Constitution. Joining us now to discuss how all of this is playing out is NPR legal affairs correspondent Nina Totenberg. Hey, Nina.


DAVIS: So this is yet another decision by the court along ideological lines. What does that split say about the court as an institution?

TOTENBERG: Well, it came a day after the court, in a sweeping decision, declared for the first time that there is a constitutional right to carry a handgun in public for self-defense. And the decision casts real doubt on a huge array of gun laws, potentially even some of the ones just passed in the big compromise bill in the House and Senate. Normally at this time, the justices would be exchanging their opinions and working with each other to resolve differences and reach some sort of consensus, but this is a court that's really riven with distrust, especially after the leak in May. And for the first time in the modern court era, there is no center. The court is the most conservative of any court in 75 years at least, and it's using the whip hand, it seems, to push a pretty conservative - I would actually say very conservative - agenda, and the result isn't great for the court as an institution. The Gallup poll just released shows that the court's approval ratings have plummeted to a historic low at 25%.

DAVIS: You brought up the guns opinion from Thursday. In that case, the court struck down a New York law that limited people's ability to carry guns in public. So it took power from the states. But in this decision, they gave power to the states. Is there a legal contradiction there?

TOTENBERG: Well, supporters of abortion rights certainly think so. I spoke to Melissa Murray, professor at NYU, and here's what she said.

MELISSA MURRAY: This is a court that is talking out of both sides of its mouth. You know, guns allegedly have more rights than pregnant women do under this court's logic.

TOTENBERG: Of course, conservatives would argue that the two things are different because there's no explicitly stated right to an abortion in the Constitution, and there is the Second Amendment right to bear arms.

DAVIS: Nina, you covered the original Roe decision back in 1973. What strikes you as different about this time?

TOTENBERG: They were very different times, and there were lots of conservatives who were supporters of abortion rights, like Barry Goldwater, for instance. It's also worth noting that the original decision was 7-2, and the court was, even then, mainly Republican appointees. They were just a different kind of Republican appointees. Even though they were conservatives, it was a much more centrist conservatism. And that was slowly eroded. Today, we have a court with three Trump appointees and no Justice Merrick Garland, who would have been easily confirmed, but for the fact that Senate Majority Leader Mitch McConnell blocked any consideration of his nomination. And, of course, those are hardball tactics, but much more the norm now in the Senate, the House, and it appears even on the court.

DAVIS: But, Nina, it's not like courts haven't taken unpopular positions before, even positions against the majority of the will of the public.

TOTENBERG: It certainly has. Any court can take a hit. You know, the country was furious in 1962 when a liberal court majority banished prayers in public schools. But this court is much more on a tear. It's reaching out for cases that it doesn't have to take yet. We have affirmative action next year. We have a case that the court reached out to accept about whether a business can turn away gay clients. And there's more - lots more. It's going to be another rock 'em sock 'em term, and I think it's going to be that way for a long time.

DAVIS: That's NPR's Nina Totenberg. Thanks, Nina.

TOTENBERG: You're welcome. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.