The United States Supreme Court is facing a legitimacy crisis unlike anything we have seen in our lifetimes. According to The Washington Post, only 7% of Americans have substantial confidence in the Court, while more than 58% disapprove of the job it is doing (Haglin, Jordan, Merrill and Ura, 2022). Although the exact ideological makeup of the Court is subject to some debate, it is generally acknowledged that six justices adhere to conservative principles while the remaining three are much more liberal in their outlook. This substantial conservative majority has seen the Court issue an increasing number of right-wing decisions in recent months. The most impactful, of course, was Dobbs v. Jackson Women’s Health Organization – the decision which overturned Roe v. Wade (1973) and declared that the right to an abortion is not present within the U.S. Constitution. Although this decision does not serve as a nationwide ban on abortion, it allows conservative-leaning states to implement restrictions that could see reproductive rights curtailed for tens of millions of Americans (Glenza, 2022: 12).

And yet, this is only the tip of the iceberg. Even before Dobbs v. Jackson, public confidence in the Court had been progressively deteriorating. The three justices appointed by President Donald Trump – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – each ascended to office in a haze of controversy. In the case of Gorsuch, his seat was deliberately kept vacant by the Republican-controlled Senate for over a year to prevent then-President Barack Obama from choosing a more liberal appointee. Two years later, Kavanaugh’s confirmation process was marred by accusations of sexual misconduct; he was ultimately confirmed by a Senate vote of 50-48, one of the narrowest margins in history. And in 2020, Ruth Bader Ginsburg – who had served on the Court for nearly three decades and is widely recognised as a trailblazer in the field of women’s rights – died, leading to a rushed confirmation process which saw the much more conservative Barrett appointed in her place.

It is interesting that the current crisis facing the Court has largely been fuelled by issues relating to gender equality. The Dobbs decision, the troubling accusations against Brett Kavanaugh, and the replacement of Ruth Bader Ginsburg with a justice who does not share her passion for feminist issues have greatly wounded the Court’s authority. Since gender equality is being given a backseat to other issues, it is worth examining how previous incarnations of the Court tackled women’s rights.

The 1950s is the best place to start. From 1953 to 1969, Earl Warren served as Chief Justice of the Court, and this era is appropriately referred to as the Warren Court. The Warren Court is widely recognised as the most liberal in history. It instigated school desegregation in Brown v. Board of Education (1954), declared that anyone too poor to afford a lawyer must be provided one free of charge in Gideon v. Wainwright (1963), and is generally praised for consistently defending human rights and civil liberties. Despite this reputation, gender equality was something of a blind spot. In the most prominent case concerning women’s rights that came before the Court, the unanimous opinion was written by John Marshall Harlan II – the most conservative member. He rejected the argument that a sexist jury service law in Florida was unconstitutional, at one point declaring that ‘…woman is still regarded as the centre of home and family life’ (Hoyt v. Florida, 1961: 62). This statement was endorsed by all nine justices, casting doubt on the Warren Court’s reputation as a defender of individual freedoms.

When Earl Warren retired, he was replaced by Warren Burger, who served in the role until 1986. In contrast to the Warren Court, the Burger Court handed down astonishingly progressive decisions regarding gender equality, and many of these decisions remain in place today. The most widely known is Roe v. Wade, which established a constitutional right to abortion and would protect reproductive rights until it was overturned earlier this year. But the Burger Court was responsible for numerous other advances, including outlawing discrimination against pregnant women seeking unemployment insurance and entitling female military personnel to dependency benefits equal to that of their male counterparts. This era also saw the appointment of the first female justice: Sandra Day O’Connor, who took her seat in 1981 and would serve for twenty-five years. In the words of Judith Baer, ‘women may be the only group to have fared better before the Burger Court than before the Warren Court’ (1978: 470).

William Rehnquist, who served as an associate justice during much of Burger’s Chief Justiceship, succeeded Burger in 1986. On the surface, it is easy to assume that the Rehnquist Court – which lasted until Rehnquist’s death in 2005 – was more hostile towards women’s rights than its predecessor. After all, Rehnquist’s own views on gender equality were less than progressive. As an associate justice during the 1970s, he often found himself dissenting from the majority when it came to the subject of gender equality. In several landmark cases, including Frontiero v. Richardson (1973), Taylor v. Louisiana (1975), and Stanton v. Stanton (1975), he was the only dissenter from an otherwise united bench (Seymour, 1997: 30-33). He was also one of two justices who opposed the Court’s majority ruling in Roe v. Wade. Nevertheless, Rehnquist’s personal views were rarely endorsed by his colleagues, and most of the precedents established during the Burger Court remained intact. Seymour attributes this to the appointment of O’Connor in 1981 and Ginsburg in 1993, which ‘…made it more difficult for the Brethren to continue with a straight face upholding statutes which assumed a woman’s place was in the home’ (1997: 40).

The current incarnation of the Court is known as the Roberts Court. It is named after John Roberts, who replaced Rehnquist as Chief Justice in 2005. Under the tenure of Roberts, the first substantial rollback of women’s rights has taken place – but other rights may soon be at risk. In a concurring opinion to Dobbs v. Jackson, Justice Clarence Thomas wrote that the overturning of Roe v. Wade could lead to the Court reconsidering a number of other cases, including the rulings which legalised same-sex marriage and contraception (Dobbs v. Jackson Women’s Health Organization [Thomas, J., concurring], 2022: 3). Whether Thomas, who is arguably the most right-wing justice on the bench, will convince his colleagues to embrace this position is yet to be seen. However, the precedent set by Dobbs v. Jackson could have troubling implications for everyone who has worked hard to see their rights recognised under the law.

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