The Supreme Court’s reversal of abortion rights last year deviated so much from traditional decision-making that it might have soon appeared an aberration. But now into 2023, the six conservative justices are plainly positioned to remake the law across the board.
Their actions in a series of pending cases, reaching out for issues before they’ve been aired in lower courts and taking precipitous steps on culture war dilemmas, demonstrate that they will continue to defy norms and the usual judicial bounds.
“We are a court of law, not policymakers,” Justice Neil Gorsuch admonished his colleagues in late December, as he dissented from the majority’s latest incursion on immigration policy at the southern border. Gorsuch’s words were not without some irony as he usually joins with his conservative allies moving aggressively on the law.
Liberal justices had warned last June when the majority reversed Roe v. Wade that it had other precedents in its sights. “No one should be confident that this majority is done with its work,” the dissenters wrote.
The court this month is experiencing the relative quiet before the storm of its current session. It will soon begin handing down the first of its decisions for the 2022-23 term, typically saving the most difficult and consequential for later in the spring.
Many of the cases the justices have accepted for the session, including the dispute over Trump-era limits on asylum claims, reflect long-held agenda items of justices on the right wing. This court, for example, seems determined to end policies that consider people’s race to address shortfalls in campus diversity or gaps in voting rights.
Based on oral arguments last fall, the emboldened majority is poised, in cases from Harvard and the University of North Carolina, to eliminate race-based admissions at colleges and an array of practices that have opened the door for more Blacks, Latinos and other racial minorities on campuses.
Lower courts had upheld racial affirmative action, rooted in Supreme Court precedent dating to the late 1970s. No split existed in lower regional courts – the usual grounds for Supreme Court involvement – but the justices granted appeals from conservative advocates who’ve asked the court to overrule the 1978 Regents of the University of California v. Bakke and subsequent decisions upholding the use of race in admissions.
The Supreme Court has also signaled a readiness to continue upending voting rights and election law, in pending cases from Alabama and North Carolina. The Alabama case centers on an essential section of the 1965 Voting Rights Act that prohibits racially discriminatory redistricting maps and voting rules.
Even before the court had heard the merits of the case testing the protections of that section, it restored the state legislature’s map providing for only one Black-majority district among seven, despite the state’s 27% Black population. A three-judge panel had said the legislative map diluted the Black vote, and the panel declared that Black voters were sufficiently numerous in the state to merit a second district.
The case comes 10 years after Chief Justice John Roberts wrote a decision that gutted a separate significant section of the VRA. By a 5-4 vote, the court invalidated the provision that required states with a history of racial bias to obtain federal approval before changing electoral rules, for example, related to voter ID requirements.
The high court has also recently fortified its openness to Christian conservatives, agreeing on Friday to hear a case brought by a former mail carrier who sued the US Postal Service after being disciplined for refusing to work on Sundays.
Earlier this term, the justices took up a sweeping challenge to Colorado’s LGBTQ anti-discrimination law, in a case in which the law had not yet been enforced and the factual record unclear. A website designer who said she wants to design wedding sites but forgo services for same-sex weddings because of her Christian beliefs is arguing that the law broadly threatens free speech rights.
Beyond rattling foundational principles, last summer’s abortion ruling demonstrated the limited leadership of Roberts. He failed to persuade the five justices to his right to hold off on the reversal of a half century of abortion rights.
Since then, Roberts’ lack of response on court ethics issues and to questions related to a May leak of a draft ruling in Dobbs v. Jackson Women’s Health Organization has only further laid bare the limits of his stewardship.
Roberts said eight months ago that he was launching an investigation into the security breach, but he has been silent about what has been discovered or security fixes. Roberts had a unique opportunity to address any of the public concerns in his annual year-end report two weeks ago. He declined.
For their part, the court’s liberals are still working through their anguish. Justice Sonia Sotomayor, senior among the three on the left, told an audience earlier this month that the abortion decision left her “shell-shocked” and “deeply, deeply sad.”
Her “sense of despair” has been tempered, she said, by a desire to keep fighting and a conviction that the judicial tide will eventually turn.
“It may take us time,” she told an audience at the Association of American Law Schools, “but I do believe we’ll go back on the right track.”
Conservatives can afford to lose votes
There are six justices on the right wing, so if one splits off – contending they are going too far – five remain.
That happened in late December when conservatives, over a Gorsuch dissent, blocked a lower court decision that had declared unlawful the administration’s authority to swiftly remove people crossing the southern border and seeking asylum.
The high court sided with a group of Republican-led states making a last-ditch effort to join the case and challenge a lower court’s rejection of the asylum practice that dated to the early days of the Covid-19 pandemic and was instituted as a public health measure, not the border control measure that the GOP states effectively seek.
In March 2020, the Trump administration invoked its power under a law known as Title 42 to authorize the expulsion of migrants seeking asylum at the border, rather than allowing them to enter the country and have claims heard.
The Supreme Court involvement arose after attorneys general from Arizona and 18 other states tried to intervene to keep the Title 42 authority in place. The dispute had originally been brought on behalf of families who had crossed the US-Mexico border and were subject to removal under the policy.
By a 5-4 vote, the justices on December 27 acquiesced to the states and dissolved the lower court order that would have ended the practice of summarily removing people. The majority said it would decide – in arguments now scheduled for March 1 – whether the states have the authority to challenge the district court judge’s order on Title 42.
But the sheer blocking of the lower court action demonstrated the justices’ grip on immigration policy.
“(I)t is hardly obvious why we should rush in to review a ruling on a motion to intervene in a case concerning emergency decrees that have outlived their shelf life,” Gorsuch wrote. “The only plausible reason for stepping in at this stage that I can discern has to do with the States’ second request … that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it. … But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency.”
As the justices rejected Biden administration pleas to stay out of the case, they reinforced a familiar pattern. The majority has been less inclined to accept Biden positions than those of former President Donald Trump on immigration. During the Trump tenure, for example, the court endorsed his travel ban for certain majority-Muslim countries, allowed funds to be transferred without congressional approval to build a border wall, and permitted restrictions on federal benefits for green-card applicants.
The Biden legal team is likely to remain on the losing end of this court – a court that will easily outlast this administration even if it goes to a second term.
The conservative judicial wing is relatively young. (The last three Supreme Court vacancies were caused by the retirement or death of justices in their 80s.) On the right with Roberts, age 67, are Clarence Thomas, 74, Samuel Alito, 72, Neil Gorsuch, 55, Brett Kavanaugh, 57, and Amy Coney Barrett, 50. On the left are Sotomayor, 68, Elena Kagan, 62, and Ketanji Brown Jackson, 52.
The two wings also divide along political lines: the six on the right were nominated by Republican presidents, and the three on the left, Democratic presidents. Such a neat ideological-political division is somewhat new in judicial history, as is the phenomenon that today’s outcomes repeatedly align with Republican Party positions, whether on immigration and race, voting rights, or religion.
And Republican appointees are likely to control the bench for decades to come.
Yale Law School’s Ian Ayres and Kart Kandula predicted last July that even if Democrats won five of the next seven presidential elections, the Supreme Court would still be controlled by Republican-nominated justices.
They chalked the pattern of GOP dominance up to the strategic tendency of justices to retire during periods when presidents of their nominating party hold office.
After examining various simulations based on presidential politics and court vacancies, they wrote in a blog post, “If Republicans more realistically have a 50% chance of winning future presidential elections, then the current Republican majority might persist beyond most of our lifetimes. We end our analysis at 50 years, but with a 50% probability of Republicans winning each presidential election, the probability that a Republican-nominated majority will persist for more than 50 years is 65%.”