What we’ve learned about the Supreme Court’s rightward shift during this term


The last time the rate of conservative decisions matched even the term ending Thursday was during Chief Justice John G. Roberts Jr.’s first term, which began in 2005.

Since then, the final days of the Supreme Court’s term have typically ended with a mix of decisions pointing in different ideological directions. That changed this week with a string of results that left Conservatives jubilant and energetic about the court’s direction and Liberals distraught.

“Each year since John Roberts became chief justice, the court’s results at the end of the term have been less conservative than many court observers feared at the beginning of the term,” said David Cole, the American Civil Liberties Union’s national legal director. “This time the naysayers got it right when the court traded caution for brute force.”

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

In the decades leading up to Judge Barrett’s arrival, the court was heavily divided. This meant that the member of the court at its ideological center – Justice Anthony M. Kennedy and then Chief Justice Roberts – wielded enormous power. They’re both right-leaning, but they tend to have a couple of big Liberal victories in each term.

The dynamic at the new court is different and one-sided, with six Republican and three Democratic appointments. The middle judiciary appears to be Justice Brett M. Kavanaugh, who was appointed by Mr. Trump to replace the more liberal Justice Kennedy. In the just-ended term, Judge Kavanaugh swung to the right, voting in a conservative direction on 79 percent of the cases in separate cases where the court heard arguments and issued signed opinions. In the previous period it was 58 percent.

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

“Although most Americans will focus on the disastrous abortion decision, there have actually been a number of follow-up decisions during this term,” she said. “On critical issues like gun rights, religious freedom, federal funding, government speech and federal regulators, we saw a conservative bloc striving to make the most of its 6-3 supermajority.”

The term was also notable for its split. There was at least one contradiction in 71 percent of the court’s signed decisions in disputes, the highest rate in nearly four decades, according to the compiled data 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 well aware that they had been marginalized by what Justice Sonia Sotomayor called a “troubled and newly constituted court” when they objected to a decision that made it harder to sue federal officials for violations of the constitution.

“The majority overruled Roe and Casey for one reason: because they have always despised them and now have the votes to cast them out,” they wrote. “In this way, the majority replaces the rule of law with a judicial regulation.”

The court ruled 58 cases, a slight increase from the last two terms affected by the pandemic. But the number of signed decisions in disputes was still the third lowest since 1937.

Nineteen decisions were made by a vote of 6 to 3, and in 13 of them all three Democratic votes dissented. These cases included cases related to abortion, gun rights, climate change, school prayer, government aid to religious schools, the death penalty, campaign finance, and limiting lawsuits against government officials.

“The Supreme Court has moved much faster this term than I anticipated,” said Tara Leigh Grove, a law professor at the University of Texas at Austin.

However, there were some splits on the right. “The conservative wing of the court is not a monolith,” said Roman Martinez, Supreme Court specialist at Latham & Watkins, “and there are real and significant differences in how far and how quickly the law can be pushed in a more original direction.”

The most notable example of this was the opinion of Chief Justice Roberts in the abortion case, which would have upheld the restrictive Mississippi statute at issue but would not have overruled Roe in so many words. The chief justice’s failure to win a single vote for this approach is significant, Professor Epstein said.

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

The members of the court most likely to agree in divided judgments were Chief Justice and Justice Kavanaugh, at 98 percent. The two judges least likely to vote together in such cases were Justices Sotomayor and Clarence Thomas, at 14 percent.

Among presidential appointments from different parties, the highest approval rating, at 48 percent, was between Chief Justice Roberts and Justice Elena Kagan.

But the larger story of the term was the impotence of the court’s liberals, who cast votes with the majority in split cases in just 48 percent of the cases. Conservative justices voted with a majority with 81 percent of the vote. The 33 percentage point gap between the two blocs is about twice the average for previous terms.

The cases and statistics discussed so far refer to the so-called main file, in which the court is fully informed, hears arguments and makes reasoned decisions. The court also ruled dozens of cases on what critics call its shadow list, where judges often issue terse but consequential orders shortly after receiving summary motions and without hearing oral arguments.

Cases on abortion, elections, and vaccines all reached the court by way of emergency motions during this term. So did a request by Mr. Trump to block the release of White House recordings of the Jan. 6 attack on the Capitol.

The court denied Mr Trump’s urgent motion in January, with only Judge Thomas finding a contradiction. Two months later, it emerged that the judge’s wife, Virginia Thomas, had sent text messages to Mr Trump’s chief of staff urging him to take steps to have the vote overturned. Legal ethics experts said Judge Thomas should have resigned.

Analyzing emergency motions is difficult, but one trend is clear: In major cases referred to the full court, three of its members — Justices Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — voted very highly, in a conservative manner towards assessment. “The proposal here is one of extreme activism, rushing to assert conservative interests and causes,” wrote Professor Epstein and Pablo Aabir Das, a recent graduate student at the University of Southern California Law School, in an analysis of the data.

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

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

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

The court’s three liberals disagreed in all three cases, calling the originalism cramped and wooden. In a joint statement in the abortion case, they wrote that “the drafters have defined the rights broadly to allow for future development in their scope and meaning.”

Mr Martinez, the Supreme Court Specialist at Latham & Watkins, said the developments were twofold.

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

Judge Alito, who writes for the majority in the abortion case, said public opinion should not play a role in the court’s decision-making process. “We cannot allow our decisions to be swayed by outside influences, such as concerns about public reaction to our work,” he wrote.

Public approval of the court is certainly falling. For example, in a Gallup poll conducted after the leaked draft abortion opinion but before the formal decision, public trust in the court fell to 25 percent, the lowest level in the nearly 50 years the poll was conducted .

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

“If you lose enough institutional legitimacy, people will just not obey your decisions,” she said. “We’re not at that point yet. But we could get that far.”

The court does not hesitate. During its next term, beginning in October, it will decide the fate of affirmative action in higher education, interpret the Voting Rights Act in connection with constituency reelections, and whether a web designer has a First Amendment right to work on projects to refuse with same-sex marriages.

On Thursday, as they neared the start of their summer vacation, the judges agreed to hear another blockbuster about state legislatures’ power to set election rules, one that could radically reshape America’s elections.


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