Friday, October 7, 2022

What We Learned This Term About the Supreme Court’s Shift to the Right

The last time the rate of conservative decisions even rivaled those in the term that ended Thursday was during Chief Justice John G. Roberts Jr.’s first term, which started in 2005.

Since then, the final days of Supreme Court terms have tended to end with a mix of decisions pointing in different ideological directions. That changed this week, with a string of outcomes that left conservatives jubilant and energized about the court’s direction and liberals distraught.

“Every year since John Roberts became chief justice, the court’s results at the end of the term have been less than many conservative court watchers feared they would be at the term’s outset,” said David Cole, the national legal director of the American Civil Liberties Union. “This time, the doomsayers got it exactly right, as the court traded caution for raw power.”

That can only be the consequence of the three justices President Donald J. Trump named to the court and particularly of his appointment of Justice Amy Coney Barrett, who joined the court after the death in 2020 of Justice Ruth Bader Ginsburg.

In the decades before Justice Barrett’s arrival, the court was closely divided. That meant the member of the court at its ideological center — Justice Anthony M. Kennedy and then Chief Justice Roberts — wielded enormous power. They both leaned right, but they tended to deliver a couple of major liberal victories each term.

The dynamic on the new court is different and lopsided, with six Republican appointees and three Democratic ones. The median justice appears to be Justice Brett M. Kavanaugh, appointed by Mr. Trump to replace the more liberal Justice Kennedy. In the term that just ended, Justice Kavanaugh moved to the right, voting in a conservative direction 79 percent of the time in divided cases in which the court heard arguments and issued signed opinions. In the prior term, that number was 58 percent.

The court’s shift to the right included all sorts of legal issues, said Melissa Murray, a law professor at New York University.

“Although most Americans will focus on the cataclysmic abortion decision, there were actually a number of consequential decisions this term,” she said. “On critical questions like gun rights, religious liberty, federal remedies, government speech and federal regulatory authority, we saw a bloc eager to make the most of its 6-3 supermajority.”

The term was also notable for its divisiveness. There was at least one dissent in 71 percent of the court’s signed decisions in argued cases, the highest rate in almost four decades, according to data compiled by Professor Epstein, Andrew D. Martin of Washington University in St. Louis and Kevin Quinn of the University of Michigan.

The court’s three liberals were perfectly aware that they had been marginalized by what Justice Sonia Sotomayor called, in dissenting from a decision that made it harder to sue federal officials for constitutional violations, “a restless and newly constituted court.”

“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them,” they wrote. “The majority thereby substitutes a rule by judges for the rule of law.”

The court decided 58 cases, a slight uptick from the last two terms, which had been affected by the pandemic. But the number of signed decisions in argued cases was nevertheless the third lowest since 1937.

Nineteen decisions were decided by 6-to-3 votes, and in 13 of them all three Democratic appointees dissented. Those cases included ones on abortion, gun rights, climate change, school prayer, government aid to religious schools, the death penalty, campaign finance and limits on suits against government officials.

“The Supreme Court went a lot farther a lot faster than I expected it to this term,” said Tara Leigh Grove, a law professor at the University of Texas at Austin.

There were, however, some divisions on the right. “The conservative wing of the court is not a monolith,” said Roman Martinez, a Supreme Court specialist with Latham & Watkins, “and there are real and significant differences between how far to push the law in a more originalist direction, and how fast .”

The most significant example of this was Chief Justice Roberts’s opinion in the abortion case, which would have upheld the restrictive Mississippi law at issue but would have stopped short of overruling Roe in so many words. The chief justice’s failure to attract a single vote for that approach was telling, Professor Epstein said.

“The court has morphed into the divided, partisan, maximalist, activist court that Roberts has pushed back against for nearly two decades,” she said. “At least for now he’s lost the fight.”

The members of the court who agreed most often in divided rulings were the chief justice and Justice Kavanaugh, at 98 percent. The two justices least apt to vote together in such cases were Justices Sotomayor and Clarence Thomas, at 14 percent.

Among appointees of presidents of different parties, the highest rate of agreement was between Chief Justice Roberts and Justice Elena Kagan, at 48 percent.

But the larger story of the term was the powerlessness of the court’s liberals, who cast votes with the majority in divided cases just 48 percent of time. Conservative justices voted with the majority 81 percent of the time. The 33 percentage point gap between the two blocks is about double the average of previous terms.

The cases and statistics discussed so far concern the so-called merits docket, where the court receives full briefing, hears arguments and issues reasoned decisions. The court also decided scores of cases on what critics call its shadow docket, where the justices often issue terse but consequential orders soon after receiving emergency applications and without hearing oral arguments.

Cases on abortion, voting and vaccines all reached the court by way of emergency applications this term. So did a request from Mr. Trump to block the release of White House records concerning the Jan. 6 attack on the capitol.

The court rejected Mr. Trump’s emergency application in January, with only Justice Thomas noting a dissent. Two months later, it emerged that the justice’s wife, Virginia Thomas, had been sending text messages to Mr. Trump’s chief of staff urging him to take steps to overturn the vote. Experts in legal ethics said Justice Thomas should have recused himself.

Analyzing emergency applications is tricky, but one trend is clear: In significant cases referred to the full court, three of its members — Justices Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — voted in a conservative direction at a very high missed. “The suggestion here is one of extreme activism rushing to push through conservative interests and causes,” Professor Epstein and Pablo Aabir Das, a recent graduate of the University of Southern California’s law school, wrote in an analysis of the data.

The term was a triumph for the theory of constitutional interpretation known as originalism, which seeks to identify the original meaning of constitutional provisions using the tools of historians.

In a ruling that a coach at a public high school could pray on the 50-yard line after his team’s games, the majority looked to “historical practices and understandings.” In expanding gun rights, the majority told lower courts to “assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”

And in ruling that there is no constitutional right to abortion, the majority focused on “how the states regulated abortion when the 14th Amendment was adopted” in 1868.

The court’s three liberals dissented in all three cases, calling originalism cramped and wooden. In a joint opinion in the abortion case, they wrote that “the framers defined rights in general terms, to permit future evolution in their scope and meaning.”

Mr. Martinez, the Supreme Court specialist at Latham & Watkins, said the developments were telling in two ways.

“First,” he said, “it’s clear a majority of the court is firmly committed to an originalist understanding of the Constitution rooted in the document’s text and history. Second, that majority will act boldly to apply its originalist philosophy in ways that curb certain perceived excesses of 20th-century ‘living constitutionalism,’ even when doing so is controversial and at odds with public opinion polls.”

Justice Alito, writing for the majority in the abortion case, said public opinion should play no role in the court’s decision making. “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” he wrote.

The court’s public approval is certainly plummeting. In a Gallup poll taken after the leaked draft of the abortion opinion but before the formal decision, for instance, public confidence in the court fell to 25 percent, the lowest in the nearly 50 years over which the survey has been conducted.

Professor Grove said the court’s authority could not withstand a lasting loss of public trust.

“When you lose enough institutional legitimacy, people just aren’t going to obey your decisions,” she said. “We’re not close to that point yet. But we could get to that point.”

The court is not slowing down. In its next term, which starts in October, it will decide the fate of affirmative action in higher education, how to interpret the Voting Rights Act in the context of redistricting and whether a web designer has a First Amendment right to refuse to work on projects involving same-sex weddings.

On Thursday, as they were about to begin their summer breaks, the justices agreed to hear one more blockbuster, one that could radically reshape American elections, on the power of state legislatures to set voting rules.

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