Florida Atlantic University’s Constitution Day event, “The Constitution Today,” took place in the Osher Lifelong Learning Society’s Barry and Florence Friedberg Auditorium on Sept. 17. 

The event focused on the role of the Supreme Court in understanding the U.S. Constitution, the current political climate and the implications of the court’s recent rulings in reshaping American society. Constitution Day is held annually to commemorate the signing of the U.S. Constitution in 1787. Per tradition, educational institutions across the country are required to organize events to reflect on the Constitution’s significance. 

This year, FAU invited Emily Bazelon, staff writer for The New York Times Magazine and Katie Phang, host of “The Katie Phang Show” on MSNBC. Bazelon and Phang discussed the relevance of the Constitution in today’s political climate and how society might interpret it in the future.

Phang opened the discussion by referencing a recent Emerson College poll assessing Americans’ opinions on the U.S. Supreme Court. Of 1,000 registered voters surveyed, 54% said Supreme Court Justices are a reflection of the president or the administration that appoints them. 

“I think there’s no question that the Supreme Court has a strongly conservative majority… And I think that it has also become more and more true that justices tend to reflect the ideological tendencies and commitments of the presidents who appoint them,” said Bazelon.

She referred directly to the impact of the Donald Trump administration’s appointments. 

“There’s lots of evidence for that, especially since 2021 when former President Trump’s last appointee—he has three—joined the court,” Bazelon said.

According to Bazelon, this influx of conservative justices has profoundly altered the Court’s ideological makeup, hence the decisions made. 

To better explain what it means when someone refers to the Court as “Conservative,” Bazelon described how the Court’s nomination process has shifted over time. She explained that in the mid-20th century, Supreme Court appointments focused more on a nominee’s credentials, such as their experience and competence, rather than their political views. 

“We had a period, maybe after the New Deal until the 1980s, where Supreme Court appointments were relatively sleepy affairs,” she noted, emphasizing that politics didn’t play as dominant a role as they do now.

However, Bazelon pointed out that this began to change with the intense 1987 battle over Robert Bork’s nomination. Bork, a conservative nominated by President Ronald Reagan, faced opposition and his eventual rejection marked the beginning of highly politicized confirmation processes—which nominees to the supreme court have to go through in order to be selected for their seat.

“Ever since then, we’ve had a very incendiary confirmation process,” Bazelon said.  “After this [the change in the confirmation process], Supreme Court nominations became more about ideology, with each side fighting hard to appoint justices who aligned with their political views.

This shift in public opinion about justices’ roles in the court, she argued, has led to today’s openly ideological battles over justices. Bazlon explained that nominees are often chosen not only for their qualifications but also for how well they reflect the political leanings of the president who appoints them.

To illustrate, Bazelon mentioned how Trump confirmed he relied on conservative organizations like “The Federalist Society” and “The Heritage Foundation” to vet his Supreme Court picks in 2016, thus showing a clear political agenda behind the appointments.

Trump’s appointments weren’t just typical nominations, Bazelon explained. 

“He was very candid about this,” she said. “Nobody had really done that before… Trump was very open about it. Maybe nobody had been honest enough about it before, saying, ‘I’m going to listen to them; they have a list.’” 

The conversation then turned toward one of the Court’s most controversial decisions: the overturning of Roe v. Wade, in Dobbs v. Jackson Women’s Health Organization. In this ruling, the Court adopted the “history and tradition” test in the decision. This is a method for interpreting constitutional issues in a way that often favors conservative outcomes,  Bazelon explained. 

“What the court is doing is that it’s trying to look for ways to pull the law into a more past historical set of interpretations, which, you’re right, tends to align more with a time in which it was white male property owners who had the vote and were deciding big questions about American life,” Bazelon said. “The history and tradition test also relates to originalism.”

According to the Constitution Center, originalism is a legal theory that interprets the Constitution by understanding the meaning it had when it was originally written and adopted, relying on sources like dictionaries, legal documents and public debates from that time. On the other hand, living constitutionalism views the Constitution as a ‘living, breathing’ document, adaptable to society’s changes.

“In ‘Dobbs’ the Court relied on a historical interpretation of the Constitution to argue that abortion rights weren’t rooted in American legal tradition,” Bazelon explained. “The problem is, they’re cherry-picking history. There’s a lot of evidence that abortion wasn’t criminalized until after quickening, which didn’t happen until the mid-19th century.” 

In Bazelon’s view, the conservative majority was “pulling the law into a past that aligns with white male property owners making the big decisions.”

The conversation then continued on the analysis of political activism inside the Supreme Court. 

According to Phang, liberal judges have historically been labeled by conservatives as “activists”, meaning they are often seen as making rulings to push specific goals. However, she believes the decisions made by a predominantly conservative court evidence this isn’t true. 

“In a fascinating turn, I believe you have judges, for example, like Matthew Kaczmarek, who maybe some of you have heard of. I will be comfortable labeling him an incredibly activist judge out in Texas. There is forum shopping where certain cases are being brought in front of Judge Kaczmarek because they know the litigants know that a particular outcome is guaranteed,” Phang said.

Phang asked Bazelon if it’s fair to say that activist judges are now more prevalent on the conservative side, considering recent Supreme Court rulings since 2022. Bazelon agreed, saying, “Yes. And it’s not so surprising that once people are in power, they want to use that power to do a lot of active things.”

She added, “Activism really means taking the Constitution to enact change.

“When you overturn ‘Roe v. Wade,’ or make it harder for unions to organize, or issue broad rulings that transform the American conception of presidential power, those are big, bold activist stances.”

The discussion of activism naturally segued into another of the Court’s recent rulings: the decision on presidential immunity in Trump v United States. 

“This decision is every bit as momentous as Dobbs andBazelon warned. “If you’re the president and you think you cannot be prosecuted for an official act, there’s suddenly nothing stopping you from ordering an assassination.”

Bazelon believes that there is a lack of clear constitutional grounding in Trump’s immunity ruling. 

“Everything I said earlier about originalism and history and tradition–it’s not part of this ruling,” she said, visibly frustrated. “There should be some constitutional precedent, something to ground this decision in, but there isn’t. They talk about ‘Nixon v. Fitzgerald,’ but that was a civil case—not a criminal one.”

Bazelon argued that the decision has created a dangerous precedent for presidential power, leaving future presidents with very few checks on their authority. 

“Do we really want the most powerful person in the world to have very little to fear about violating the criminal law while in office?” she said. “Setting aside these questions about originalism and the text of the constitution and this new, I think, understanding of the power of the presidency and how that should fit into the balance of power–like why is that a good idea?”

As the conversation came to an end, Bazelon and Phang shared their final thoughts on the upcoming presidential election and the stakes involved in future Supreme Court appointments. 

“This election could determine whether we have a 7-2 conservative court,” Bazelon said, pointing out that several conservative and liberal justices may retire in the coming years. “So even if you’re not sure you agree with the liberals on all things, do you want the balance of power down the court to shift that far to the right? These are really important questions that we’re all going to be answering and hopefully thinking about in terms of our Constitution.”

The stakes are higher than ever, both Phang and Bazlon expressed. They encouraged people to register and vote, saying, “[Voting] is what has kept our country going and strong.”.  

“And they are not eating cats and dogs in Springfield, Ohio,” Phang concluded. 

Sofia De La Espriella is the Editor-in-Chief of the University Press. Email sdelaespriel2022@fau.edu or message her on Instagram @sofidelaespriella for information regarding this or other stories.