The Supreme Court of the United States
J. Scott Applewhite / AP Photo
The Supreme Court of the United States
J. Scott Applewhite / AP Photo
(Washington) — In January, the U.S. Supreme Court embarks on the second half of a term with a fortified 6-to-3 conservative majority. But unlike the first half of the term, there will be no norm-busting President Trump often railing at the court’s election decisions. In tone, President Biden probably will be the functional opposite, but his policies are likely to be greeted with more skepticism.
For decades, the court’s five-justice conservative majority was split between those who wanted to move slowly in a more conservative direction and others who wanted to move more aggressively. But now, with the more centrist conservatives retired and three Trump appointees on the court, there is a conservative supermajority of six, meaning one vote to spare.
No longer, as during the last term, does the reliably conservative but more incrementalist Chief Justice John Roberts have the controlling vote. The other five can now prevail without him.
Bottom line: The current court may well turn out to be the most conservative since the 1930s.
“On religion, abortion, gun rights and race, for example, there is a solid majority to change the law and … move whip quick,” says Supreme Court advocate and SCOTUSblog publisher Tom Goldstein.
Obamacare and religion
Already argued this term, but not decided yet, are two big cases. One tests whether the Affordable Care Act, known as Obamacare, must be struck down entirely because one provision — the so-called mandate — was eliminated by Congress. But the law, including the mandate, has already been upheld twice before by the high court.
Republicans in Congress have failed dozens of times to kill the ACA, even when they controlled the House, the Senate and the White House. In the meantime, Obamacare has become a very popular program, and if the court were to declare the entire law invalid at this late date, Republicans could end up in the position of a dog that chases the car for years and finally catches it. It could be bloody.
The other case heard earlier this term tests whether the city of Philadelphia may refuse to award some foster care contracts to Catholic Social Services because CSS, based on religious objections, refuses to screen LGBT couples, as required by the city’s anti-discrimination laws.
The tea leaves, as of now, indicate CSS will win. If so, the power of government to make contracts — the one area long viewed as relatively immune to religious challenges — would become fair game for religious objectors.
A decision in favor of CSS would also be quite a departure from the court’s 1990 decision written by conservative icon Antonin Scalia. That 6-to-3 ruling declared that a valid and neutrally applied law is constitutional even if it has some incidental negative effects on some religious groups. As Scalia put it back then, allowing exceptions to every state law or regulation affecting religion “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”
Still, the current court appears headed in the direction that Scalia warned against. Indeed, even before the confirmation of Justice Amy Coney Barrett, there was a firm conservative majority in religious liberty cases.
The only religious liberty case in which Chief Justice Roberts split with fellow conservatives involved the public health measures that governors have taken during the pandemic. Early on, Roberts sided with the liberals in allowing governors to limit attendance at religious services in order to curb the spread of the coronavirus. But that was before the death of Justice Ruth Bader Ginsburg.
In what could be a harbinger of things to come, Roberts’ vote became irrelevant after Barrett joined the court and provided a fifth vote against Gov. Andrew Cuomo’s actions in New York. Similar orders limiting church and synagogue attendance were soon struck down.
On a different question, the executive power of the presidency, the Supreme Court’s conservative majority has generally deferred to Trump’s muscular assertions of presidential power. So, will the conservative court majority be similarly deferential to Biden?
“I think the short answer is no,” says University of Texas law professor Stephen Vladeck. “Some of that is going to reflect … the fact that the court will be more suspicious and skeptical of some of the policies that the Biden administration attempts to pursue by executive order.”
SCOTUSblog‘s Goldstein agrees, noting that “historically, the Supreme Court’s view about whether a president has powers [to do certain things] has tended to track whether the justices in the majority like the president and his policies.” Goldstein adds that it will be “really fascinating” to see whether a court that has “breathed more life” into presidential powers “will stick with that even if they don’t like the policies of a much more liberal president.”
Both Goldstein and Vladeck note, however, that the conservative majority has been cutting back on the regulatory power of administrative agencies to carry out objectives spelled out in legislation. That trend, they observe, is likely to increase, making it more difficult for agencies to make rules carrying out everything from environmental to consumer protection laws.
“This term is like an iceberg,” says Goldstein. “There are big cases above the surface,” like the ACA case. But below the surface, there are cases being pushed by big business that could make it hard for “the little guy” to go to court and harder for agencies to enact regulations. If big business prevails, he maintains, “it’ll be an earthquake” in terms of consequences.
Abortion and guns
On the hot-button issues of abortion, guns and race, the court’s conservative majority is most likely to start moving aggressively next term and thereafter.
Will Roe v. Wade, the court’s 47-year-old abortion rights precedent, be overturned? There are two schools of thought on that. One is that the court will systematically hollow out the right to abortion so that it is a right on paper only.
The other school of thought is that leaving Roe a shell is not enough for those opposed to abortion. “There is, I think, a galvanizing view within the pro-life movement that the time has come to call the question,” observes New York University law professor Melissa Murray.
If Roe is to be overturned, however, it likely will take more than a year or two to come to fruition. Former Obama-era Solicitor General Donald Verrilli has said that he thinks it likely will happen within five years or so.
On guns, though, the court looks — for the first time — to have a clear majority that is hostile to gun regulation. Last term, the court once again punted, and punted again on the issue, declining to hear 10 gun-rights cases. Presumably, Chief Justice Roberts’ then-deciding vote was still in doubt.
But now, with Barrett newly on the court and Ginsburg gone, there appear to be five conservative votes ready to march down the path of expansive gun rights, and Second Amendment activists are teeing up new cases.
“I can tell you people are getting more aggressive,” says professor Blackman, a gun-rights advocate. Gun-rights groups “are emboldened to try to push new frontiers” now.
Election cases and race plus affirmative action
Election cases are also before the court, though none that will undo Trump’s defeat. But, left over from Trump’s fight, there is a possible case from Pennsylvania testing whether state supreme courts have the authority to interpret state laws and state constitutions in federal elections. The justices declined to review the case prior to the election — and affected ballots, relatively few in number, would not have changed the outcome. But the justices may yet agree to hear the case to resolve the issue.
Also on the docket are cases involving state laws that make it more difficult to vote. In 2013, the high court struck down a key part of the Voting Rights Act. Roberts confidently wrote, “Our country has changed,” and he said that the protections in the law were no longer needed. Within days, though, Republican-dominated state legislatures in the South began writing new laws that made it, once again, more difficult to vote, and they started redrawing legislative lines to further limit minority influence in state and federal legislatures.
So, will that reality on the ground have any influence in the current voting rights cases before the court? No, say voting rights experts.
UT’s Vladeck says that while the current court did hold the line against Trump’s post-election attempts to change the outcome, the court’s conservatives believe states should be free to enact pre-election laws that restrict early voting and voting by mail, while at the same time allowing states to purge voting roles and tighten voter ID requirements. The conservative majority does not see such restrictions as aimed at intentionally stacking the deck against poor and minority voters.
“For the chief justice and easily a majority of this conservative Supreme Court, their views about race are fully baked,” says SCOTUSblog‘s Goldstein.
In the same vein, by next term the court will likely hear arguments in one of several cases testing affirmative action in higher-education admissions. The court, for a half-century, has repeatedly ruled that some consideration of race in college admissions is permissible, but a racial quota is not.
But now, there may well be a conservative majority to reverse those rulings and bar all consideration of racial diversity in college admissions. After that, affirmative action in employment could be next.
In the coming year, other key developments also could shape the Supreme Court’s future.
Retirements on the horizon?
Eighty-two-year-old Justice Stephen Breyer, one of the court’s three remaining liberals, could step down. But he may feel constrained by the fact that Republicans currently control the U.S. Senate, and GOP leader Mitch McConnell has never hesitated to use his power as Senate majority leader to block or advance Supreme Court nominees based solely on whether the nominating president is a fellow Republican or a Democrat.
So, Breyer might stay his hand. If, however, the Democrats win two Senate seats in Georgia in January, giving Democrats the upper hand in the Senate for the first time in 10 years, Breyer may well pull the trigger on retirement.