Erin Schaff/Pool/Getty Images
In 2018, just after announcing his retirement, Justice Anthony Kennedy, who served at the court’s ideological center for much of his 30 years in office, met with a group of reporters. Was he worried that some of the precedents he had helped set – abortion rights and LGBT rights, for example – were now under threat? No, he replied. He was convinced that constitutional rights, once established, would remain in place.
It only took four years and the addition of another Trump appointee to the Supreme Court to prove him wrong.
There is simply no way to overstate what the Supreme Court has done this term. No living journalist or scholar can remember a term with so many earthquakes in the law.
The data tells the story. The court issued more conservative rulings this quarter than at any time since 1931, according to statistics compiled by professors Lee Epstein of Washington University in St. Louis and Keven Quinn of the University of Michigan.
In 62% of the decisions, conservatives prevailed and, more importantly, often prevailed dramatically.
The sweeping nature of the Court’s decisions and their sheer number was a dream come true for hardline conservatives and a nightmare for liberals and moderates.
By quashing Roe v. Wade, the court erased half a century of legal precedents and eliminated the constitutional right to abortion. Just weeks after the shooting in Uvalde, Texas, the court issued a broadly worded opinion, making it more difficult to regulate guns. In a major environmental case, the court limited the EPA’s ability to deal with climate change and, in doing so, signaled that other government assertions of regulatory power in the name of health and safety could be on the block. In two religion cases, the court barely mentioned the concept of separation between church and state; instead, he expanded public funding options for religious schools and spoke out in favor of a high school football coach who wanted to pray on the 50-yard line, a significant extension of teachers’ rights to public religious expression, even ostentatious, at work.
A court without a center
One of the many things that sets this court apart from any other court of the past 90 plus years is that the current court has no center. Chief Justice John Roberts very occasionally takes a more progressive approach than his conservative colleagues, as he did in the abortion case. But the other five conservatives can and have in this case prevailed without him. At the same time, Justice Brett Kavanaugh’s voting pattern this term has shifted 20% to the right. So instead of it now being ‘the Roberts court’, or a court dominated by a single judge, Prof Epstein says, it is ‘the Trump court’, because half of the 6-3 Tory majority was appointed by the former president. .
As for the liberals, says Epstein, they have become “small players”, drowned out by a conservative symphony.
Some of the effects of the court’s work were immediate, with the doors of abortion clinics closing across large swaths of the country. Other effects are already underway, with cases challenging a government regulatory structure that since the New Deal has allowed Congress to give agencies broad power to deal with major health and safety issues – regulations that protect this air and water, to those aimed at protecting pharmaceuticals, food, automotive safety and even the stock market, to name a few.
Even the government’s attempt to impose a vaccine or testing regime on large private employers was thrown out of court this quarter, with the exception of vaccine mandates for healthcare workers and the military. And those exceptions were by a split vote, 5 to 4 to keep the mandate for health care workers, 6 to 3 for the military.
Conservative and liberal scholars describe the current court as unusually aggressive. The “YOLO court” – You Only Live Once – said University of Michigan professor Leah Litman. “A very rushed court,” said Case Western Reserve professor Jonathan Adler. Some Supreme Court lawyers are even sharper. “Reckless,” said ACLU Chief Legal Officer David Cole.
While most of the public usually only occasionally pay attention to what the court is doing, they seem to have noticed it this time. The court’s public approval ratings have plunged, to a new low of as low as 25% in a recent Gallup poll.
More on the chopping block in the next quarter
The new conservative juggernaut is barely done. He has already agreed to look at more burning issues next quarter. Perhaps the most significant of these is a case that could radically reshape federal election rules, giving state legislatures nearly unfettered control over voting rules and the drawing of congressional precincts. If the theory prevails, state legislatures could be free to perform all sorts of partisan misdeeds, freed from the oversight of state courts, state constitutional provisions, governors, and potentially allowing legislatures to appoint college electors. voters in the presidential elections.
The court also appears poised to overturn another major precedent that has been on the books for nearly half a century. Since 1978, the court has allowed colleges and universities to use race as one of many factors considered in admissions decisions. In the next term, the court will revisit the issue in cases from Harvard University and the University of North Carolina.
Another burning social issue the court has accepted for consideration is framed as a free speech case, but is also a test of the right to discriminate against LGBTQ members of the public in commercial services. The question is whether a woman who designs websites for weddings can refuse to work for same-sex couples.
If the past tense of this term is a prologue, there are seemingly endless questions about where the court might go next. The majority opinion in the abortion case, written by Judge Samuel Alito, is based on reasoning also included in court precedents on same-sex marriage, the rights of couples to use and have access to contraception, and even the rights of interracial couples to marry. And while Alito sought to refute any notion that those decisions were in jeopardy, he mocked a previous abortion decision that was based in part on some of those decisions.
Additionally, this trimester’s abortion decision left many questions unanswered. For example, can a state prohibit a person from receiving FDA-approved abortion pills sent through the US postal system? Can states ban telemedicine appointments with out-of-state doctors? In states where abortion is banned, can states ban advertisements and other information about how to get an abortion?
It is also unclear how far the court is willing to go in its religious jurisprudence. By upholding a football manager’s right to pray on the 50-metre line, surrounded by willing players, the Conservative majority rejected one precedent and seemed to leave room for other precedents to be broken – including the Repeated court decisions since 1962 banning teacher-led classroom prayer. Douglas Laycock, a University of Virginia law professor who is a strong supporter of the free exercise of religion clause in the First Amendment, wonders how school officials, or lower court judges, are going to tell the difference between prayer on the football pitch and prayer in the classroom.
The court’s decision in the prayer case is one of many decisions in recent years in which the court has dismantled previous rules that sought to draw a clear line between church and state. Among them: The court ruled that the constitution prohibits federal anti-discrimination laws, including those requiring accommodations for ill or disabled employees, from applying to lay teachers in religious schools; he ruled that a Catholic social services agency could refuse to honor its contract with Philadelphia, a contract that required it to work with same-sex couples applying to foster adoptive children; it ruled that closed for-profit corporations could refuse, on religious grounds, to comply with a federal law requiring insurance covering contraception for their employees; it ruled that city councils and other public councils are free to open their meetings with explicitly Christian prayers. He ruled that a 4o-foot cross honoring soldiers who died in World War I could remain on state property at a busy intersection in suburban Maryland.
It’s by no means a complete list, but it’s an indication of more such rulings to come, and because religious overtones touch on so many aspects of American life – from abortion to children’s rights homosexuals to what we want children to read or know – these decisions will have implications for millions of people. The current court has been the most pro-religious of any court for nearly 70 years, according to statistics compiled for a forthcoming article in Supreme Court review, written by Professor Epstein and Professor Eric Posner of the University of Chicago. While the number of pro-religion results reached 58% overall when William Rehnquist was Chief Justice (1986-2005), the rate soared to over 86% in the years that followed with John Roberts as Chief Justice and growing court composition. ever more conservative.
Whatever one thinks of the tribunal’s decisions in these and other cases, it is clearly not a tribunal that shy away from controversy or challenge. And the topics he’s likely to tackle often pit young against old, rural against urban, and even black against white — in other words, the most polarizing topics of our time. Abortion, the right to vote, affirmative action in school admissions and employment, LGBTQ rights, the content of history taught in public schools, and even the banning of books in public libraries – all of this will, in all likelihood, end up in the fold of a very conservative Supreme Court.