Just after his announcement of retirement in 2018, Justice Anthony Kennedy met with a small number of reporters. Kennedy was the ideological centre of the court’s 30-year tenure. Did he worry that some of his precedents, such as the right to abortion or LGBT rights, might now be in danger? He replied, “No.” He was certain that the constitutional rights once established would be maintained.
It took only four years and one additional Trump appointee at the Supreme Court to prove him wrong.
It is impossible to exaggerate the impact of this term’s Supreme Court decisions. There are so many seismic changes in law that no journalist or scholar can recall.
The data tell the whole story. According to statistics compiled and analyzed by Lee Epstein of Washington University, St. Louis and Keven Quin of the University of Michigan, this court made more conservative decisions than any other time since 1931.
A staggering 62% of all decisions were made in favor of conservatives. And, more importantly, they often won in dramatic ways.
The court’s broad decisions and sheer volume of them were a nightmare for moderates and liberals, but a dream come true for hard-line conservatives.
“It’s not a nightmare because you wake up from a dream and it ends at some point,” states Supreme Court advocate Tom Goldstein (publisher of SCOTUSblog). The problem for the American Left, and other centrist conservatives, is that they are “stuck with” this court “for at least the next quarter century. You have a conservative majority… that is… shifting the goal posts…on any issue you can think of.”
Goldstein, who has been following the court’s work almost three decades, says it is difficult for him to believe what is actually happening.
The court overturned Roe v. Wade and erased half a century of court precedents. It also abolished the constitutional right for abortion. The court issued a broad-based opinion that made it harder to regulate guns just weeks after the Uvalde shootings. The court issued a broad opinion in a major environmental case that curtailed the EPA’s ability deal with climate change. It also signaled that any other assertions by the government of regulatory power for safety and health could be under threat. The court did not mention the notion of separation of church and state in two cases involving religion. Instead, it extended public funding options for religious schools, and ruled in favor a high school football coach who wanted permission to pray at the 50-yard line. This is a significant expansion of teachers rights to public, and even extravagant, religious expression on the job.
The current court does not have a center, which is one of many things that makes it different from other courts over the past 90-plus years. Chief Justice John Roberts sometimes takes a more incremental approach to conservatives than his fellow conservatives. This was evident in the case regarding abortion. However, the five other conservatives could and did prevail in that case without Chief Justice John Roberts. Moreover, Justice Brett Kavanaugh’s voting patterns in this term shifted 20% to the left. Professor Epstein claims that this court is no longer “the Roberts Court”, or a court dominated only by one justice. Instead, the court is now “the Trump Court” because the former president appointed half of the 6-to-3 conservative majority.
Epstein says that the liberals have become “bit players”, drowned out in a conservative symphony.
SCOTUSblog’s Goldstein cites more data to support the conservative supermajority’s hard turn to right. This term, there were more 6-to-3 court decisions than ever before, fewer unanimous court decisions and “every single liberal justice was in dissent this year more than any other year in their careers,” which includes Justice Stephen Breyer, who has been on the court for twenty-eight years.
The court’s actions had some immediate effects, such as the closing of large areas of abortion clinics across the country. Others are already underway, including cases challenging the government’s regulatory structure, which since the New Deal has allowed Congress to grant agencies broad powers to address major safety and health problems. These range from regulations protecting air and water to regulations protecting food and pharmaceuticals.
The court ruled against the government’s attempt at mandating a vaccine-or test regime for large private employers. This term’s exception was the mandate for vaccines for military personnel and health care workers. These exceptions were voted down by a split vote: 5-to-4 for health care workers and 6-to-3 for military personnel.
Liberal and conservative scholars both describe the court’s current actions as aggressive. Leah Litman, University of Michigan professor, described the “YOLO court” as “You Only Live One.” Jonathan Adler, a Case Western Reserve professor, said that he saw a court in a hurry. David Cole, the ACLU’s legal advisor, called it “heedless.” Jamal Greene, a Columbia law professor, said that “Reactionary” is a different word from conservative. He noted that the court is moving backwards by overturning centuries of modern law and returning legal understandings to the seventeen and eighteen hundred.
Although most people pay little attention to the court’s activities, this time it seemed to be paying more. According to a Gallup poll, the court’s approval rating has dropped to as low as 25%.
The new conservative juggernaut is not yet over. It has already committed to reexamining other hot-button issues in the next term. The most important is the case that could fundamentally change the rules for federal election. It would allow state legislatures to have almost unlimited control over voting rules and the drawing of congressional district lines. The theory suggests that state legislatures may be able to do whatever they want, without the oversight of state courts, state constitution provisions, governors or state courts. This could allow them to nominate electoral college voters in presidential elections.
The court seems to be focusing on removing or weakening the few protections that remain for minorities living in states with a history racial discrimination. Professor Greene at Columbia says that this will have “a lot, some of which are unpredictable”.
Another major precedent that has been in place for almost a century is also being reversed by the court. The court has allowed universities and colleges to consider race in their admissions decisions since 1978. The court will return to the subject in the next term with cases from Harvard University, North Carolina and University of North Carolina.
Another hot social issue the court accepted for review is that it is being framed as free speech, but also serves to test the right of LGBTQ members of public to be discriminated against in commercial services. The issue is whether a woman designing websites for weddings may refuse to work for the same-sex couple.
The court’s future is uncertain if this term’s history is prologue. Justice Samuel Alito wrote the majority opinion in the abortion case. It is based upon reasoning that was also found in court precedents regarding same-sex marriage, contraception rights for couples, and the rights of interracial couple to marry. Alito attempted to discredit any notion that these decisions were in danger, but his abortion opinion mocked an earlier abortion decision that was partly based on those very same decisions.
This term’s abortion decision also left many unanswered questions. Can a state prohibit a person from getting abortion pills that have been approved by the FDA and sent through the U.S. post system? States can ban telemedicine visits with doctors outside of their state. States that ban abortion are allowed to ban advertising and information on how to get one.
It is not clear, however, how far the court will go in its religious jurisprudence. The conservative majority rejected one precedent and left room for others to be broken. This includes the repeated court decisions that have prohibited teacher-led prayer in schools since 1962. Douglas Laycock, University of Virginia law professor, is a strong advocate of the First Amendment’s free exercise of religion clause. He wonders how school officials or lower court judges will distinguish between prayer on the football pitch and prayer in the classroom.
In recent years, the court has rescinded many rules that attempted to separate church and state. It ruled the Constitution bars federal anti-discrimination law, including those that require accommodations for sick or disabled employees from applying to lay religious school teachers; it ruled a Catholic social service agency could refuse to follow its contract with Philadelphia. This contract required it to work alongside same-sex couples seeking to adopt foster children. It also ruled on religious grounds that closely held corporations can refuse to adhere to a federal law that requires insurance to cover contraception. The court also ruled city councils and other public bodies are allowed to open with prayers The court ruled that the 4o-foot cross in honor of soldiers who died in World War I may remain on state property at an intersection in suburban Maryland.
Although this is not a comprehensive list, it does give an indication of the potential for more such decisions. Because religious overtones are so prevalent in American life, from abortion to gay rights to what children should read and know, these decisions could have significant implications for millions. According to statistics collected by professor Epstein and Eric Posner of The Supreme Court Review for an article due in The Supreme Court Review (published in The Supreme Court Review), the current court is the most proreligious court in almost 70 years. Although the overall number of pro-religion results was 58% when William Rehnquist served as chief justice (1986-1905), it has risen to more than 86% over the years with John Roberts serving as chief justice and the court becoming more conservative.
No matter what one thinks about the court’s decisions on these and other cases it is clear that it does not shy away from controversy or contention. The court is likely to tackle many controversial subjects, including those that pit young people against old, urban and rural, as well as black against white, which are some of the most divisive topics in our time. All of this will end up at the feet of a conservative Supreme Court.
