The U.S. Supreme Court building is seen in Washington, D.C., on September 23, 2020. Photo: Diego M. Radzinschi/ALM

Land mines for the legitimacy of the U.S. Supreme Court exist in a new term likely to be overtaken by challenges from Mississippi and Texas to the justices' abortion rights precedents, according to some veteran high court advocates.

"Not since Bush v. Gore has the public perception of the court's legitimacy seemed so seriously threatened," Irv Gornstein, executive director of the Supreme Court Institute at Georgetown University Law Center, said Tuesday while noting that four justices—John Roberts Jr., Stephen Breyer, Clarence Thomas and Amy Coney Barrett—have felt compelled recently to defend the court as a nonpartisan institution.

"I think we may have come to a turning point," Gornstein added. If within the span of two to three terms, there are "sweeping, one-sided" decisions in cases such as voting, abortion, guns, religion and affirmative action, he said, "The perception of the court may be permanently altered. If the justices think a few unanimous decisions and votes against type will counter that impression, I think they may be deluding themselves."

Gornstein was one of four former assistants to the U.S. solicitor general and one former acting U.S. solicitor general who examined the key cases in a preview of the upcoming term that begins Oct. 4. In addition to Gornstein, the panel included Sullivan & Cromwell partner Jeffrey Wall, Mayer Brown partner Nicole Saharsky, Latham & Watkins partner Roman Martinez, and former Jenner & Block partner Paul Smith of Georgetown University Law Center.

And although they all agreed there are potential threats to the court's legitimacy in the term's cases involving abortion, gun rights, religion and perhaps affirmative action, they disagreed on whether those threats will materialize in "sweeping, one-sided decisions."

"I do think there's a sustained campaign to delegitimize the court, which has gotten some traction on the left," said Martinez, noting recent polls showing the decline in the court's favorability rating. "Frankly the court, to its credit, is defending itself. Justice Breyer's new book is pretty courageous in defending the court and taking the longer term view."

Martinez acknowledged there is "some danger" for the court, but he added, "I hope the court's response is: 'I don't think judges should be listening to the public and tailoring their rulings accordingly.' But there are people out there who think they should."

Smith, however, pushed back, saying a series of events show there is "not just a manufactured" campaign. "The court is going to be way to the right on a number of issues and we got there through the handling of the [Merrick] Garland and Barrett situations. A lot of people are very upset with how we got here. I don't think that will go away."

During the confirmation hearings for Brett Kavanaugh and Barrett, predictions were made about how they would vote on issues, such as the Affordable Care Act, recalled, Martinez. "If you look at the track record of the court over the past few years, none of those things came to pass."

But one area where the court's conservative majority has not held back, Smith countered, was in any case involving elections. "They always end up favoring their political side: campaign finance, partisan gerrymandering, voting rights. This is the area where people think politics come into play."

Where all of them did agree was on the role that abortion may play in the new term and a decision's effect on the public's perception of the court. The justices are set to hear arguments in Mississippi's 15-week abortion ban Dec. 1. That case also asks the justices to overturn their 1973 landmark ruling in Roe v. Wade and their 1992 decision reaffirming Roe in Planned Parenthood v. Casey.

"If the court is prepared to overrule Roe, what it does on guns and affirmative action is not going to be strong wind in the sails," Wall, acting U.S. solicitor general in the Trump administration, said. "If they strike down affirmative action and somewhat expand the Second Amendment, it won't create some kind of groundswell with the public unless accompanied by some watershed ruling on abortion."

And a related major question, Saharsky said, is whether the Texas abortion case will overtake the Mississippi abortion case. The court on Sept. 1 in a 5-4 vote allowed Texas' six-week abortion ban to take effect after rejecting a stay request from an abortion clinic. Chief Justice Roberts was the only conservative to dissent, along with the court's three justices on the left.

"I can imagine the public pressure will continue to grow," she said. "Right now there's almost no ability to get an abortion in Texas. But how does the court grant relief given the posture of the case?" The Texas law cedes enforcement only to private citizens who can be awarded $10,000 if they prove the law has been violated by an abortion provider or anyone who aids and abets an abortion.

Smith suggested "the cleanest way" for a challenge to the Texas law to get to the Supreme Court would be from a civil suit judgment. "But that could leave the ban on abortions in Texas for months and months."

And the recent lawsuit filed against Texas by the United States may have serious standing problems, said Wall. "It's not clear the United States has standing to seek relief against everyone. Even if it gets past standing, this is a breathtaking cause of action."

In looking over the term's docket thus far and its significance for the court's legitimacy, Gornstein said he did not think sweeping, right-side rulings in all politically salient cases were inevitable. He noted that last term, three justices on the left (Breyer, Sonia Sotomayor, Elena Kagan) and three on the right (Roberts, Kavanaugh, Barrett) were interested in reaching compromises and did so in the Affordable Care Act case and the LGBT-religion foster care case.

"The huge question mark for this term and next is whether the same six can find common ground in any of the controversial cases," he said.

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