Retired Tennessee Judge Shares Thoughts on What to Expect in the Supreme Court’s Next Session

'They are bound by what the Constitution says.'

The U.S. Supreme Court Building in Washington on Oct. 3, 2022. Anna Moneymaker/Getty Images

The U.S. Supreme Court has returned to work after a three-month summer break. As this will be the first term with Justice Ketanji Brown Jackson on the bench, one retired judge shares his thoughts on what to expect.

According to an NPR report, the Supreme Court is the most conservative it has been in 90 years, with an unprecedented 62 percent of its rulings in the 2021–2022 term falling on the conservative side of the scales. However, Justice Ketanji Brown Jackson’s support for progressive ideologies has stirred concern among some conservatives.

Judge Ketanji Brown Jackson testifies before the Senate Judiciary Committee on her nomination to serve on the Supreme Court in Washington on March 22, 2022. Jim Watson/AFP via Getty Images

Jackson has been criticized for her support of critical race theory and her praise of the “1619 Project,” liberal ideologies based on the divisive idea that America was built on a foundation of racism and slavery, and was segregated into permanent classes of white oppressors and oppressed minorities.

While Jackson has never ruled directly on the issue of abortion rights, her position that women have a “right to abortion” is consistent with the Democrat Party’s pro-abortion stance. During a time when states like Florida and Georgia have enacted laws preventing transgender indoctrination of children—defined by transgender advocates as “attacks on LGBTQ rights”—Jackson’s appointment to the Supreme Court was heralded by those in the LGBT community as a sign of hope. They believe that adding her “nearly flaw-free LGBTQ+ record“ to the ”supermajority of conservative justices who in their rulings have shown to be hostile to LGBTQ+ people and criminal defendants“ will make it ”a more credible government body.”

As noted in a Feb. 25 report for FiveThirtyEight, an assessment of Jackson by Judicial Common Space predicted she would be somewhat of a moderate, “slightly to the right of Justice Elena Kagan and well to the right of Justice Sonia Sotomayor.” A separate assessment by the Database of Ideology, Money in Politics, and Elections portends Jackson will become the new liberal standard bearer on the Supreme Court, placing her well to the left of Kagan and even Sotomayor. “According to this metric,” the report stated further, “Jackson is actually one of the most liberal judges on the D.C. Circuit.”

Still, Paul Summers, a former judge and attorney general for Tennessee, is “optimistic that she’s going to try to do the right thing.”

Paul Summers is a former attorney general of Tennessee with a law career spanning over 30 years. Courtesy of Paul Summers

Summers has worked in the legal field for over 30 years. He was a member of the Tennessee Court of Criminal Appeals and, most recently, a senior judge for Tennessee’s circuit, criminal, chancery, and business courts. Before entering private practice in 2006, he served as a district attorney and state attorney general.

“I’ve seen it all, I’ve done it all,” Summers told The Epoch Times.

Our ‘Clairvoyant’ Founding Fathers

While Summers conceded that Jackson “might have her own personal opinions,” he said “that does not change what the Constitution of the United States says.” While the Constitution was ratified in 1789, Summers contends that “not only were our Founding Fathers smart, they were clairvoyant.”

“They created three separate but equal branches of government,” Summers explained, adding that while “two were completely political, the third branch is, and should be, nonpolitical.”

“That’s the judicial branch,” he clarified, noting that while the executive and legislative branches “run for election for two, four, or six years,” members of the judicial branch are placed by presidential appointment and congressional approval and, “as a whole, they are not political.”

“They are not bound by policies,” Summers explained. “They are not bound by polls. They are not bound by politics or ideology. They are bund by what the Constitution says.”

However, during questioning at her confirmation hearing (pdf), Jackson refused to take a position on whether or not “humans possess inherent or inalienable rights,” as she admitted is reflected in the Declaration of Independence.

Regardless of Jackson’s personal opinions and support of liberal causes, her position on the Supreme Court did nothing to dilute the conservative super majority. Jackson replaced Associate Justice Stephen Breyer, nominated by President Bill Clinton in 1994 to fill the seat of the retiring justice Harry Blackmun. Described as “a pragmatic moderate acceptable to Democrats and Republicans alike,” Breyer was easily confirmed by the then Republican-controlled Senate in a vote of 87–9.

The ‘Triumph of Originalism’

In an Aug. 4 policy paper, the Senate Republican Policy Committee (RPC) described the Supreme Court’s first full term with the six-justice conservative majority—made possible by President Donald Trump’s nomination of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—as “historic.”

The high court’s June 24 decision to overturn Roe v. Wade, and the June 23 ruling striking down New York’s 1913 law that placed limits on carrying concealed handguns outside of the home, prompted some legal experts to declare the “triumph of originalism.”

The Supreme Court’s Oct. 3 court order (pdf), reversing a federal appeals court decision that upheld one of Massachusetts’ toughest gun laws, dealt its second blow to gun control.

Pro-life activists demonstrate on the steps of the U.S. Supreme Court in Washington on June 27, 2016. Pete Marovich/Getty Images

“In addition to its ruling in Dobbs v. Jackson Women’s Health Organization, which has received the bulk of the media’s focus, the court embraced the doctrine of originalism and its role of defending the Constitution in several other significant cases,” the RPC report stated. “Conservative justices ruled to strengthen religious liberty protections, protect the Second Amendment rights of people to defend themselves outside of their homes, reduce the power of unelected bureaucrats, and return power to the people through their elected representatives.”

Even The New York Times described the 2021–2022 term as “a triumph for the theory of constitutional interpretation known as originalism.”

“Originalism” refers to a judicial philosophy based on the belief that the text of the Constitution should be interpreted strictly as it was written by the Founding Fathers. Asked to explain originalism “in English” during her confirmation hearing, Barret said: “So in English, that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.”

During her confirmation hearing in June 2010, Justice Elena Kagan said “we are all originalists,” adding that “the Framers were incredibly wise men, and if we always remember that, we will do pretty well, because part of their wisdom was that they wrote a Constitution for the ages.”

Supreme Court Justice Ruth Bader Ginsburg gestures while speaking during the inaugural Herma Hill Kay Memorial Lecture at the University of California at Berkeley, in Berkeley, Calif., on Oct. 21, 2019. Jeff Chiu/AP Photo

While speaking at an event in Washington in November 2011, Justice Ruth Bader Ginsburg said that, albeit in a different way, she counted herself “as an originalist too.”

“Equality was the motivating idea, it was what the Declaration of Independence started with, but it couldn’t come into the original Constitution because of the odious practice of slavery that was retained,” she said. “I think the genius of the United States has been from the original Constitution where ‘We the People’ were white property-owning men to what it has become today.”

Not Bound by Politics

Summers, a self-professed independent, currently serves as chairman of the Keep Nine Coalition. As reported Sept. 1 by The Epoch Times, the Keep Nine Coalition is an organization pushing for lawmakers to amend the Constitution and codify that the U.S. Supreme Court must be limited to nine justices.

As Summers explained, several former attorneys general got together about 15 years ago and decided to form a coalition on a nonpartisan, bipartisan basis to preserve the independence of the Supreme Court. What they proposed was a simple, 13-word amendment, saying “The Supreme Court of the Unites States shall be composed of nine justices.”

Of the 15 former attorneys who formed the Keep Nine Coalition, eight were Democrats and seven were Republicans, with Summers being the only independent.

“So, it clearly was bipartisan,” Summers asserted. “They understood what the Supreme Court does. They understood the role of the Supreme Court and they further understood that the Supreme Court is not bound by polls, politics, emotions, or ideology. They try to interpret the Constitution as it stands. They try to interpret federal law as it stands. They also endeavor as human beings to determine whether or not a state statute complies with the federal Constitution.”

According to Summers, there are about 7,000 applications for permission to appeal before the Supreme Court annually. He said “every case is controversial” and every case was “based on politics or polls.” However, while only about two percent of those cases ever rise to the level of being heard by the high court, every one of the opinions that is rendered by the Supreme Court finally decides an issue that saw conflict among the 13 circuit courts.

Based on the Constitution

According to Summers, “every case that comes before the United States Supreme Court is controversial.” However, “it’s not unusual for them to reverse themselves.”

Pro-life activists demonstrate outside the Supreme Court of the United States in Washington on June 13, 2022. Evelyn Hockstein/Reuters

“Let’s take the Dobbs case for example,” Summers posited. “They basically overruled the previous decision made in Roe v. Wade. The court ruled that abortion is not a federal constitutional right. Its Roe decision was incorrectly decided as were other progeny cases, and the authority to regulate abortion is returned to the people and their elected representatives, which is what our Constitution is all about. The Dobbs decision was based on the Constitution, not on polls or politics. Abortion was not, I repeat, not abolished. The decisions regarding abortion were returned to the states where they belong. This is not the first time that the Supreme Court reversed itself. They’ve reversed themselves over 100 times since 1789. This is a case that has gained a lot of attention, but it’s not the first time.”

In the 1896 case of Plessy v. Ferguson, the court ruled that “separate but equal” was constitutional. But in Brown v. Board of Education in 1954, the court ruled that “separate but equal” was unconstitutional, reversing the previous ruling.

The 1963 ruling in Gideon v. Wainwright overruled a 21-year opinion (Betts v. Brady) that originally said states did not have to provide counsel for indigent defendants.

“It’s not unusual for the Supreme Court to overrule itself,” Summers said. “It’s just a matter of their rulings getting more attention during an election year.”

The New Term

During this term, Supreme Court justices will hear challenges that involve race and elections, and in some cases, the cross section of both.

This term, the justices will take up a pair of affirmative action cases regarding college admissions. The cases—Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina—allege the schools discriminate against Asian-American applicants.

Another case, Merrill v. Milligan, considers race and voting access, arguing that Alabama violated the Voting Rights Act of 1965 when the state failed to create a second district where black voters made up the majority. The justices will also wrestle with free speech and LGBT rights in 303 Creative LLC v. Aubrey Elenis.

“Every case the Supreme Court rules on is absolutely important and absolutely important to somebody,” Summers said. “But what’s happened is, particularly with the media, in an era where information is so instantaneous, the Supreme Court will come down with an opinion and within an hour people will formulate an opinion about whether or not that’s right or wrong without reading any briefs or even knowing the case existed.”

As a result of living in the era of the social media information super highway, Summers said Supreme Court rulings become “an instantaneous issue,” which is immediately argued through political ideology on both sides. What Summers and the coalition of fellow former attorneys general want to do is “to make absolutely sure that we have an independent Supreme Court, an independent judiciary that bases its decisions on the law and the Constitution.”

While Summers could not comment on how he thought the high court would rule on the individual pending cases, he is confident that high court will continue on its current course of following the Constitution in its rulings.

“I don’t think anything is going to change in this next session,” he said. “We need a court that abides by the rule of law, that all men and women are created equal and endowed with certain inalienable rights like life, liberty, and the pursuit of happiness. Finally, and most importantly, we need to make sure the judiciary is a check and balance of the abuse of power by the other two branches. That’s what’s important.”