“The Supreme Court is supposed to be our last word on the law and yet right now the Supreme Court is dealing with some very heavy issues . . . and is under tremendous strain,” according to Ari Melber, an attorney and Anchor of The Beat with Ari Melber on MSNBC. Melber, who received a 2016 Emmy award for his reporting on the Supreme Court and serves as MSNBC’s chief legal correspondent, was a keynote speaker at MSBA’s 2022 Legal Summit in Ocean City. Melber noted that while lawyers think about the Supreme Court more than most people, it is not an exaggeration to say that right now, the law and Supreme Court rulings are on the minds of many Americans.

Melber explained that when people talk about the law in the United States, they want it to serve as a way to navigate through their problems and not something to be discarded in an emergency or in tough times. In law school, students look at so-called hard cases, which Melber thinks can be a good thing when we measure the notions of justice in the rule of law. Melber went on to acknowledge that as Americans, we have been through tough times lately, and he thinks it comes as no surprise that when we have big controversies that are legal or become legal, the law matters a great deal. 

Melber also explained that because  four justices have joined the court in the last five years, it is a very new court that will be ruling on key cases, and the recent appointments are partly a product of the political forces that are shaping the court. As an example, Melber pointed out that one president, in one term, put three justices on the court, which is a lot more than most presidents. The other piece of news Melber addressed was the recent leak of a draft Supreme Court opinion and  the fact that the Chief Justice asked all the clerks for their phone records, potentially without a warrant. Melber cautioned that the details of the story are still coming into view and he did not want to prejudge things, because it is still unknown who leaked the draft opinion or what motivated them. He speculated it could have been leaked to gain political advantage, which he noted would be detrimental to the court. 

Melber then turned to the substance of the leaked opinion, which “could potentially overturn about 50 years of precedent and will put the Supreme Court front and center in a lot of people’s minds in America.” Melber also warned that the opinion could change and the final version could be drastically different from what was leaked. Melber  also offered his thoughts on the leaked opinion, noting that it was striking to him how blunt, unvarnished, and at times emotional Justice Alito’s writing is, and while that may change over time, it begins with what sounds like assertions or the views of Alito or the group of judges signing on to the opinion rather than deeply reasoned legal analysis.

Melber pointed out that early on in the leaked draft opinion, Alito says Roe had “damaging consequences, it deepened division across America and inflamed debate.” In Melber’s opinion, whether that’s true or not is up for debate, but it is not a reason to overrule precedent, and the court should not be concerned with those factors. 

Melber explained that the leaked opinion uses an originalist style approach. Under originalism, which began with deceased Supreme Court Justice Antonin Scalia, originalists argue that because the 14th Amendment does not mention abortion, it does not protect abortion. Melber also pointed out that while it is true that the Constitution does not expressly provide a right to abortion, it also does not say interracial marriage is a right, and at the time of drafting it would not have been allowed. Melber went on to clarify that while he was not “saying that we can deduce that all originalism is somehow right or wrong; it is a philosophy of interpretation.”  

Melber also highlighted another argument from the leaked opinion that examines, from the originalist lens, whether the 14th Amendment provides a woman a liberty interest to exercise the right to abortion. According to Melber, the way the draft opinion analyzes that issue is by looking at the timing of the 14th Amendment which was ratified in 1868 and the laws of abortion at the time. Melber went on to say that the originalist view must deal with the limits of history, and he noted as a example that women used to have to get their spouse’s approval to get a credit card and until 1978 could be terminated solely for being pregnant.  

Melber also took issue with the draft opinion’s claim that its authors have no view on prenatal rights or cognizable interests. Melber  express his belief that the draft opinion reads like a pro-life opinion that’s in denial and that raises questions about why that is necessary. 

Among other things, Melber opined that  while we are seeing a certain level of tension around a decision that is seemingly aligned with the political pro-life movement, the same court can still serve up an 8-1 ruling upholding the right of Congress to do investigations when former president Donald Trump was trying to block them, “so it’s not that there is no consensus on issues” Melber said.  

Melber concluded by answering questions from MSBA members on SCOTUS, and on the Johnny Depp v. Amber Heard ruling, which was delivered during his presentation. 

You can view Melber’s keynote presentation here.