Skip to Main Content

The Impact of U.S. Supreme Court Decisions

The Impact of U.S. Supreme Court Decisions

Renee Shaw and guests discuss the U.S. Supreme Court. Guests: April Wimberg, a Louisville attorney and member of the Federalist Society Louisville Chapter; Scott White, former Kentucky Deputy Attorney General and Lexington lawyer; Samuel Marcosson, a constitutional law professor at the University of Louisville; and Paul Salamanca, University of Kentucky law professor.
Season 29 Episode 24 Length 56:33 Premiere: 07/11/22

Legal Experts Discuss the Court's Overturning of Roe v. Wade and Other Important Cases

The recent U.S. Supreme Court decision to end a women’s constitutional right to an abortion looks to signal a new era for the court now anchored by a conservative majority eager to flex its muscles on a range of issues.

Samuel Marcosson, a constitutional law professor at the University of Louisville, equates the shockwaves from the recently completed court term – which included the abortion ruling as well important decisions on gun rights and religious liberties – to the dropping of the first atomic bomb.

“I think the Supreme Court and its direction changed just as irrevocably for at least decades to come with this last term,” says Marcosson.

The abortion case, Dobbs v. Jackson Women’s Health Organization, involved a Mississippi law banning the procedure after the first 15 weeks of pregnancy. But the court majority used Dobbs to say there is no constitutional right to an abortion. In overturning Roe. v. Wade after nearly 50 years, the court said that abortion is a matter that should be decided at the state level.

Marcosson and fellow constitutional law professor Paul Salamanca of the University of Kentucky Rosenberg College of Law say that Chief Justice John Roberts sided with the majority to uphold the Mississippi ban but didn’t agree with overturning Roe.

“Roberts has a style or an approach that’s described as incremental,” says Salamanca. “He likes to make smallest decision possible, typically speaking, that will resolve the case and make, relatively speaking, as little new law as possible.”

Roberts is no less conservative on many issues than the other five conservative members of the court, according to Salamanca. But he says the chief justice’s incremental nature may isolate him on certain issues from the more activist conservatives on the court.

And because there are now so many conservative justices present, Marcosson says they don’t need the chief justice’s vote to secure a majority opinion.

“Roberts no longer has control of the direction or the scope of what the court’s going to do,” says Marcosson.

Procedural Rights Versus Substantive Due Process Rights

In his concurring opinion, Justice Clarence Thomas signaled other cases he thinks the court should reconsider: Obergefell v. Hodges on same-sex marriage, Lawrence v. Texas on same-sex relationships, and Griswold v. Connecticut on access to contraception.

Like Roe v. Wade, those three cases hinged on what is known as substantive due process. That’s a principle in constitutional law that enables courts to create and then protect certain rights – such as a right to privacy or a right to an abortion – that aren’t explicitly mentioned in the U.S. Constitution.

But Thomas and other conservatives don’t agree with that doctrine, saying that the Constitution only protects procedural due process rights that are included in the text, like the right to a speedy trial by a jury of one’s peers. They argue that rights to privacy or to have an abortion aren’t enumerated in the Constitution; therefore, they shouldn’t enjoy constitutional protection.

Even though many Americans thought Roe was a settled constitutional right because it had nearly five decades of legal precedence in place, the court majority argued it was justified in overturning Roe because it was wrongly decided in the first place based on substantive due process.

From a legal standpoint, that Dobbs decision doesn’t necessarily mean there can never be a constitutional right to an abortion, according to April Wimberg, a Louisville attorney and member of The Federalist Society. She says it just means pro-choice advocates need a to find a different argument that would satisfy Thomas and other court conservatives.

“The way I read it is that if you really care about these laws, find something else to hang your hat on because I [Thomas] don’t believe in substantive due process,” says Wimberg.

If the court adheres to this strict, constitutional approach in other cases going forward, Marcosson says many rights that Americans currently enjoy like same-sex marriage could be revoked by court conservatives.

“If you apply that same logic, then they should be at risk,” he says. “If we’re not going to apply that same logic, then this point is just politics. It’s just the court reaching a result and doing it because they don’t like abortion.”

In his opinion, Justice Samuel Alito said the decision in Dobbs shouldn’t be seen as a path to striking down Obergefell, Lawrence, or Griswold because those cases must be carefully reviewed through their own lens of legal and historical precent.

“The problem is Alito is basically saying the Supreme Court is equipped to also be the supreme historians, and they just aren’t,” says Scott White, former Kentucky Deputy Attorney General and Lexington lawyer.

Salamanca concedes that using a historical test is determine what rights should or shouldn’t be considered constitutionally protected is tricky.

“History is complicated, and it’s possible to get it wrong,” says Salamanca.

But he adds that a historical test is probably preferable to judges using some sort of abstract philosophical yardstick to considering the law.

A New Approach to the Law

Although the Dobbs decision captured most of the attention at the end of the court’s term in late June, the justices decided other cases that reinforce the conservative tilt of the current membership. The court struck down a concealed-carry gun law in New York, said a Washington State high school football coach had a right to pray with his players after games, and ruled that Maine cannot withhold taxpayer-funded tuition assistance to families that want to send their children to religious schools. Justices also restricted the federal Environmental Protection Agency’s ability to regulate greenhouse gases.

Court critics say these decisions prove that the conservative justices are abandoning institutional norms and moving state and federal policies to the right.

“This is a Federalist Society wish list,” says White. “The Federalist Society is totally allied with the Republican Party and so this notion that the court is apolitical is just beyond, in my view, a denial of reality.”

“I think the court has acted as a political branch and that shouldn’t surprise us,” adds Marcosson. “The court is political and I don’t think it ever hasn’t been,”

Others argue that these decisions aren’t as extreme or political as they may appear. Salamanca says the EPA ruling didn’t say the federal government can’t address air pollution, but simply that Congress must grant more specific regulatory authority to the agency to do it. On abortion, he says the majority didn’t outlaw the procedure, but said it was a matter for each state to decide.

“I think that a person could look at what the court’s done and is in the process of trying to do in a more charitable light… and that is not that it’s trying to dictate conclusions, it’s trying to simply insist on the process,” says Salamanca “We need to give the Supreme Court some credit for taking the text of the constitution seriously.”

But states may not have complete flexibility on abortion, according to Marcosson. He says some anti-abortion state lawmakers are already considering ways to restrict people from traveling to states where abortion is legal to get the procedure.

Given their large majority, the conservative faction of the court has the votes to take up more cases on issues they care about, such as same-sex marriage or federal regulatory authority. Even so, Wimberg contends the court majority is more interested in interpreting law than making law. She argues the court isn’t as political as elected officials are.

“I don’t know if it’s the politics [or] is it the approach,” says Wimberg. “I think that this court just approaches the law different.”

In the 2022-2023 term that starts in October, the Supreme Court is scheduled to hear cases on affirmative action in higher education, religious liberties, the role of state legislatures in setting election policies, and the federal Clean Water Act.

Sponsored by:

You give every Kentuckian the opportunity to explore new ideas and new worlds through KET.

SummerPledge logo with a DONATE NOW button.SummerPledge logo with a DONATE NOW button.

Program Details

Kentucky Tonight

About Kentucky Tonight

Kentucky Tonight, hosted by Renee Shaw, is an hour-long, weekly public affairs discussion program broadcasted live on Monday evenings. Discussions focus on issues confronting Kentuckians.

TV Schedules

Jump to Recent Airdates

Upcoming

Kentucky Tonight

  • Monday August 22, 2022 8:00 pm ET on KET
  • Monday August 22, 2022 7:00 pm CT on KET
  • Tuesday August 23, 2022 6:00 am ET on KETKY
  • Tuesday August 23, 2022 5:00 am CT on KETKY
  • Tuesday August 23, 2022 2:30 pm ET on KETKY
  • Tuesday August 23, 2022 1:30 pm CT on KETKY
  • Tuesday August 23, 2022 11:00 pm ET on KETKY
  • Tuesday August 23, 2022 10:00 pm CT on KETKY
  • Wednesday August 24, 2022 1:00 am ET on KETKY
  • Wednesday August 24, 2022 12:00 am CT on KETKY
  • Wednesday August 24, 2022 9:30 am ET on KETKY
  • Wednesday August 24, 2022 8:30 am CT on KETKY
  • Wednesday August 24, 2022 6:00 pm ET on KETKY
  • Wednesday August 24, 2022 5:00 pm CT on KETKY

Kentucky Tonight

  • Monday August 29, 2022 8:00 pm ET on KET
  • Monday August 29, 2022 7:00 pm CT on KET
  • Tuesday August 30, 2022 6:00 am ET on KETKY
  • Tuesday August 30, 2022 5:00 am CT on KETKY
  • Tuesday August 30, 2022 2:30 pm ET on KETKY
  • Tuesday August 30, 2022 1:30 pm CT on KETKY
  • Tuesday August 30, 2022 11:00 pm ET on KETKY
  • Tuesday August 30, 2022 10:00 pm CT on KETKY
  • Wednesday August 31, 2022 1:00 am ET on KETKY
  • Wednesday August 31, 2022 12:00 am CT on KETKY
  • Wednesday August 31, 2022 9:30 am ET on KETKY
  • Wednesday August 31, 2022 8:30 am CT on KETKY
  • Wednesday August 31, 2022 6:00 pm ET on KETKY
  • Wednesday August 31, 2022 5:00 pm CT on KETKY

Kentucky Tonight

  • Monday September 12, 2022 8:00 pm ET on KET
  • Monday September 12, 2022 7:00 pm CT on KET
  • Tuesday September 13, 2022 6:00 am ET on KETKY
  • Tuesday September 13, 2022 5:00 am CT on KETKY
  • Tuesday September 13, 2022 2:30 pm ET on KETKY
  • Tuesday September 13, 2022 1:30 pm CT on KETKY
  • Tuesday September 13, 2022 11:00 pm ET on KETKY
  • Tuesday September 13, 2022 10:00 pm CT on KETKY
  • Wednesday September 14, 2022 1:00 am ET on KETKY
  • Wednesday September 14, 2022 12:00 am CT on KETKY
  • Wednesday September 14, 2022 9:30 am ET on KETKY
  • Wednesday September 14, 2022 8:30 am CT on KETKY
  • Wednesday September 14, 2022 6:00 pm ET on KETKY
  • Wednesday September 14, 2022 5:00 pm CT on KETKY
Jump to Upcoming Airdates

Recent

School Safety - S29 E29

  • Wednesday August 3, 2022 6:00 pm ET on KETKY
  • Wednesday August 3, 2022 5:00 pm CT on KETKY
  • Wednesday August 3, 2022 9:30 am ET on KETKY
  • Wednesday August 3, 2022 8:30 am CT on KETKY
  • Wednesday August 3, 2022 1:00 am ET on KETKY
  • Wednesday August 3, 2022 12:00 am CT on KETKY
  • Tuesday August 2, 2022 11:00 pm ET on KETKY
  • Tuesday August 2, 2022 10:00 pm CT on KETKY
  • Tuesday August 2, 2022 2:30 pm ET on KETKY
  • Tuesday August 2, 2022 1:30 pm CT on KETKY
  • Tuesday August 2, 2022 6:00 am ET on KETKY
  • Tuesday August 2, 2022 5:00 am CT on KETKY
  • Monday August 1, 2022 8:00 pm ET on KET
  • Monday August 1, 2022 7:00 pm CT on KET

Work, Wages and Welfare - S29 E28

  • Wednesday July 27, 2022 6:00 pm ET on KETKY
  • Wednesday July 27, 2022 5:00 pm CT on KETKY
  • Wednesday July 27, 2022 9:30 am ET on KETKY
  • Wednesday July 27, 2022 8:30 am CT on KETKY
  • Wednesday July 27, 2022 1:00 am ET on KETKY
  • Wednesday July 27, 2022 12:00 am CT on KETKY
  • Tuesday July 26, 2022 11:00 pm ET on KETKY
  • Tuesday July 26, 2022 10:00 pm CT on KETKY
  • Tuesday July 26, 2022 3:05 pm ET on KETKY
  • Tuesday July 26, 2022 2:05 pm CT on KETKY
  • Tuesday July 26, 2022 6:00 am ET on KETKY
  • Tuesday July 26, 2022 5:00 am CT on KETKY
  • Monday July 25, 2022 8:00 pm ET on KET
  • Monday July 25, 2022 7:00 pm CT on KET

50 Years of Title IX - S29 E27

  • Wednesday July 20, 2022 6:00 pm ET on KETKY
  • Wednesday July 20, 2022 5:00 pm CT on KETKY
  • Wednesday July 20, 2022 1:00 am ET on KETKY
  • Wednesday July 20, 2022 12:00 am CT on KETKY
  • Tuesday July 19, 2022 11:00 pm ET on KETKY
  • Tuesday July 19, 2022 10:00 pm CT on KETKY
  • Tuesday July 19, 2022 6:00 am ET on KETKY
  • Tuesday July 19, 2022 5:00 am CT on KETKY
  • Monday July 18, 2022 8:00 pm ET on KET
  • Monday July 18, 2022 7:00 pm CT on KET
Top

Season 29 Episodes

School Safety: Debating State Policies

S29 E29 Length 56:33 Premiere Date 08/01/22

Work, Wages and Welfare

S29 E28 Length 56:33 Premiere Date 07/25/22

50 Years of Title IX

S29 E26 Length 56:33 Premiere Date 07/18/22

The Impact of U.S. Supreme Court Decisions

S29 E24 Length 56:33 Premiere Date 07/11/22

Kentucky's Ban on Abortion

S29 E23 Length 56:34 Premiere Date 06/27/22

Discussing New Developments in the COVID-19 Pandemic

S29 E22 Length 56:33 Premiere Date 06/20/22

Reducing Opioid Addiction Rates in Kentucky

S29 E21 Length 56:36 Premiere Date 06/13/22

Mass Shootings and Gun Laws

S29 E20 Length 56:33 Premiere Date 06/06/22

Discussing the Rise in Gas Prices and Inflation

S29 E19 Length 56:34 Premiere Date 05/23/22

Previewing Kentucky's 2022 Primary Election

S29 E18 Length 56:33 Premiere Date 05/16/22

Third Congressional District Democratic Primary

S29 E17 Length 56:33 Premiere Date 05/09/22

Candidates in the 2022 Primary Election: Part Two

S29 E16 Length 58:33 Premiere Date 05/02/22

Candidates in the 2022 Primary Election: Part One

S29 E15 Length 58:40 Premiere Date 04/25/22

Lawmakers Review the 2022 General Assembly

S29 E14 Length 56:33 Premiere Date 04/18/22

Recap of the 2022 Legislative Session

S29 E13 Length 56:35 Premiere Date 04/11/22

Public Assistance and Jobless Benefits

S29 E12 Length 56:33 Premiere Date 03/28/22

Abortion Legislation in the 2022 General Assembly

S29 E11 Length 56:34 Premiere Date 03/21/22

State Budget, Taxes, and Other 2022 General Assembly Topics

S29 E10 Length 57:42 Premiere Date 03/14/22

Critical Race Theory and Approaches to Teaching History

S29 E9 Length 56:33 Premiere Date 02/28/22

2022 Legislative Session at the Midpoint

S29 E8 Length 56:33 Premiere Date 02/21/22

Name, Image and Likeness Compensation

S29 E7 Length 56:33 Premiere Date 02/14/22

Child Abuse and Neglect

S29 E6 Length 56:33 Premiere Date 02/07/22

Debating School Choice in Kentucky

S29 E5 Length 56:35 Premiere Date 02/01/22

Debating Provisions in the Proposed State Budget

S29 E4 Length 56:34 Premiere Date 01/24/22

Redistricting, State Budget, and Other Legislative Issues

S29 E3 Length 56:33 Premiere Date 01/10/22

Discussing Legislative Goals for the 2022 General Assembly

S29 E2 Length 56:33 Premiere Date 01/03/22

Previewing the 2022 Kentucky General Assembly

S29 E1 Length 56:35 Premiere Date 12/06/21

About

Kentucky Tonight, hosted by Renee Shaw, is a public affairs discussion program broadcasted live on Monday nights at 8/7c on KET and KET.org/live.

Viewers with questions and comments may send e-mail to kytonight@ket.org or use the message form on this page. All messages should include first and last name and town or county. The phone number for viewer calls during the program is 1-800-494-7605.

After broadcast, Kentucky Tonight programs are available on KET.org and via podcast (iTunes or Android). Files are normally accessible within 24 hours after the television broadcast.

Kentucky Tonightwas awarded a 1997 regional Emmy by the Ohio Valley Chapter of the National Academy of Television Arts and Sciences. The series was also honored with a 1995 regional Emmy nomination.

To purchase a DVD:

Call 1-800-945-9167 or e-mail shop@ket.org.

Contact

Explore KET