Prof. Anita Hill discusses equality and the future of the U.S. Supreme Court
Hill answered students’ questions about Judge Amy Coney Barrett's confirmation process and the conservative majority on the Supreme Court.
In the midst of Justice Amy Coney Barrett’s confirmation process, Prof. Anita Hill (Heller) participated in a discussion called "The Supreme Court and the Future of Equality.” The conversation was moderated by Prof. Jill Greenlee (POL) who asked questions that students had submitted prior to the event. During the webinar, Hill shared her thoughts about a conservative majority on the U.S. Supreme Court and the nomination of Judge Amy Coney Barrett.
After introducing Hill and her many accomplishments in the spheres of law and politics, Greenlee read a student's question: “Given Justice Ruth Bader Ginsburg's death and the likely confirmation of Justice Barett, how do you see the next phase of the court in issues of equality?” Hill began by explaining the current set up of the Supreme Court — five conservative justices, which she assumed would soon be six. The conservative justices’ goal is to create a conservative body of reasoning for the court in the hopes that conservative beliefs will eventually become precedent. In regards to equality, Hill said that the conservative majority is bad news. The recent actions of the Supreme Court have had dangerous implications for multiple groups of people, many of which are intensified by the snowball effect. In this context, the snowball effect means that when justices make a decision about race or LGBTQ+ rights, it impacts other oppressed groups as well. We tend to group antidiscrimination laws based on different people and identities, but Hill emphasized that laws made about one group will inevitably affect others.
On the topic of a conservative majority, Hill explained the “chipping away” strategy that the justices use. Instead of trying to completely remove progressive decisions made in previous cases, justices chip away at small aspects of the decisions. The Shelby County v. Holder decision removed Section 4 of the Voting Rights Act, eliminating the requirement to receive preclearance for voting changes.The same is happening with Roe v. Wade, where small decisions are creating restrictions on birth control and abortions, which slowly chip away at the legal status of abortion.
Greenlee then asked a question about the Affordable Care Act and transgender people’s health care, to which Hill responded, “I don’t see much light when I look at this issue.” She explained that the conservative majority has shown hostility towards LGBTQ+ rights and clear opposition toward the ACA. The only solution Hill sees is a combination of efforts from Congress, state governments and employers to repair the decision against the ACA.
After explaining the policy effects of a conservative majority, Hill discussed the confirmation of Judge Barrett. In her confirmation hearing, Barrett spoke about the idea of precedent and super precedent — precedent is a rule established in a previous case, whereas super precedent is a rule embedded into our lives and consistently supported over a long period of time, according to the essay Super Precedent by law professor Michael J. Gerhardt. Hill said she believes that Barrett will prioritize religious freedom, infringing on the right to same-sex marriage and reproductive freedoms. Barrett’s history as a judge on the 7th U.S. Circuit Court of Appeals and her confirmation hearing provided Americans a glimpse into how she plans to serve. From her recent rulings and her agreement with some of the late Justice Antonin Scalia's rulings, Barrett is expected to be opposed to many progressive decisions.
One of the final questions was whether the Supreme Court is truly mindful of public trust and public opinion. Unlike when Hill was in law school, people now realize that judges are not neutral arbiters and they have perspectives that cannot be separated from their rulings. Hill spoke about one of Justice Ginsburg's greatest qualities: her tendency to view the case from the perspective of the oppressed. Ginsburg realized that everyone comes into a case with their own background, experiences and perspectives, but that everyone involved in the case should try to put themselves in the shoes of the people being oppressed. Ginsburg adopted this perspective in many cases throughout her career as an attorney and Supreme Court justice. Hill said she is hopeful to see more judges resemble the ideas and beliefs of Ginsburg and the late Justice Thurgood Marshall in the future. All of the judges, both liberals and conservatives, bring their own experiences and perspectives to the court. This is why it is essential to make sure there are voices that represent the oppressed.
To students pursuing law and policy, Hill advised, “It is important to not just accept and apply the law, but to criticize and reform it.”