The Constitution and the 6-3 Supreme Court

September 28, 2021

The future of the U.S. Supreme Court, its credibility and its role in checking the other two branches of government were among the topics discussed during a 90-minute panel discussion held to commemorate Constitution Day.

Claire Cusick, The Well

(Photo illustration by Leighann Vinesett for The Well.)

Three panelists from the UNC School of Law and two from the College of Arts & Sciences’ political science department — all experts in some aspect of the Constitution or the Supreme Court — joined in a rousing discussion during a Sept. 23 event, “The Constitution and the 6-3 Supreme Court.” Hosted by the School of Law, the panel discussion commemorated Sept. 17, 1787, the day the Founding Fathers signed the U.S. Constitution.

“Not only am I a professor at the law school, but I have recently been tapped to lead the University strategic initiative called Promote Democracy,” said the evening’s moderator, Mary-Rose Papandrea, Samuel Ashe Distinguished Professor of Constitutional Law. “One goal of this initiative is to bring together scholars from around the campus to tackle the problems facing our democracy.”

During the 90-minute event, Papandrea posed questions to the panelists about the Supreme Court and democracy.

On the left, top to bottom: Mary-Rose Papandrea, Andy Hessick, Eisha Jain; right, top to bottom: Bill Marshall, Kevin McGuire, Isaac Unah.

“The most serious constitutional issue facing our democracy right now is presidential power,” said Bill Marshall, William Rand Kenan Jr. Distinguished Professor of Law, adding that this trend preceded President Donald Trump. “President [Barack] Obama expanded presidential power. George [W.] Bush expanded presidential power. It has been expanding at an exponential rate for years. Congress no longer stands up to the president. … The only check on presidential power that remains is the court.”

In recent years, political battles over confirming presidential nominees to the court have created rumblings about ways to “reform” the court, including expanding its seats or imposing an age limit on the justices. But changing these aspects of the court would not be good for our democracy, said Isaac Unah, associate professor of political science.

Some of these reforms verge on the dangerous, Unah said. “I think that would really lead to people not having much faith in the decisions that the United States Supreme Court makes and does end up reducing the legitimacy of the institution itself,” Unah said.

Contentious decisions create news and can leave the public with the belief that the nine justices are always divided, panelists agreed. But that is a false impression.

Eisha Jain, assistant professor of law, described a recent unanimous decision about a local police force that, while performing a welfare check on a suicidal person in his home, removed the person’s guns without a search warrant. A lower court had ruled that the police’s actions didn’t violate the Constitution’s Fourth Amendment, because they took the guns while trying to protect someone, not while trying to investigate him. The Supreme Court disagreed.

“This was a unanimous decision by the Supreme Court saying that there is no exception to the Fourth Amendment based on police engaging in a community caretaking function,” Jain said. The court essentially said “yes, we recognize police wear multiple hats, but that doesn’t mean that they can engage in a warrantless home search … reiterating that home searches are an area where we generally require police to have warrants. It doesn’t matter why they’re there,” she said.

The court recently agreed to hear a case that has Second Amendment implications, said Andy Hessick, Judge John J. Parker Distinguished Professor of Law. They will rule on a challenge to a New York law requiring different types of permits to carry a concealed weapon, and whether having to meet the state’s criteria for a particular permit violates a person’s Second Amendment rights. The fact that the court agreed to hear this case — the first significant Second Amendment case since 2008 — gives the public a view into the court’s priorities, Hessick said.

“In that [2008] case, [the court] said, look, the Second Amendment gives you the right to carry firearms,” Hessick said. “We acknowledge that some laws can limit it. We know that, say, felons can be barred from carrying firearms. … So, a big issue in this [new] case is, what’s the right test? How are we going to evaluate these laws?”

Both Marshall and Kevin McGuire, professor of political science, noted changes in what is seen as “liberal” and what is seen as “conservative,” over time.

Two recent cases stemming from investigations into President Trump’s financial records have produced opinions from the more conservative-leaning justices, specifically Justice Samuel Alito and Justice Clarence Thomas, “expressing considerable skepticism,” McGuire said, about whether Congress has the power to investigate a president outside of a formal impeachment inquiry.

“That was not the case when the president was [Bill] Clinton and the case was Clinton vs. Jones,” McGuire said, referring to the 1997 case about whether a president has immunity from litigation. Then, the court unanimously ruled a president did not. “Justice Thomas didn’t seem to have the same concern that he seems to have now.”