With sweep and speed, Supreme Court’s conservatives ignite a new era

The Washington Post · Robert Barnes

14:07 JST, July 3, 2022

WASHINGTON – The avalanche of change achieved by the Supreme Court’s conservative majority this term spans the breadth of American life, and its work draws comparisons to the most momentous decisions in the court’s history.

Its signature moment – erasing the constitutional right to abortion extended by the court nearly 50 years ago in Roe v. Wade – would have been enough to highlight the term. The court’s ruling in Dobbs v. Jackson Women’s Health Organization was the rare decision whose impact was felt within hours, as Republican-led states began prohibiting elective abortions, and will play out over years.

But the justices of what scholars say is one of the most conservative courts in decades did far more than that.

They continued a string of victories for conservative religious groups that dismantle the old rules regarding the role of religion in public life. After a decade of Supreme Court inaction, they expanded Second Amendment jurisprudence to bless the right to carry a weapon outside the home. And in a final flourish, the court’s dominant six-justice bloc limited the ability of government agencies to issue sweeping regulations of health, safety and the environment without specific authorization from Congress.

“Going into the term, the biggest question was not so much in what direction the court was headed, but how quickly it was traveling,” said Gregory G. Garre, who represented President George W. Bush’s administration at the Supreme Court.

“Now we know: fast.”

With Justice Clarence Thomas, 74, the oldest member of the coalition and Amy Coney Barrett the youngest at 50, the term should be seen as much as the beginning of an era at the court as the culmination of years of work to solidify a conservative majority.

Already, the court has decided to revisit next term whether universities can use race as one factor in making admission decisions, something previous Supreme Courts have allowed repeatedly. It will decide whether a designer of wedding websites can tell same-sex couples she will not work for them. The dispute is billed as a free-speech case but was spurred by the designer’s religious beliefs about marriage.

And as the justices split for parts unknown Thursday, they dropped another bombshell. They will consider a case that could radically change the way states set rules for federal elections, giving state legislatures almost total control over drawing the congressional districts in which candidates run and the rules of voting, even if state courts think they violate the state constitution.

“The YOLO Court” is how University of Michigan law professor Leah M. Litman describes it – You Only Live Once.

Litman, who analyzes the court with equal parts humor and dread on the podcast “Strict Scrutiny” with other liberal law professors, said the court has shown its intentions in both the cases it selects and the broad decisions it reaches.

“This term has revealed the court to be in a hurry to tick off the Republican Party’s policy goals – especially the ones they’re unable to enact in the political process,” she said, adding that the justices “seem to be bending over backwards to address their pet issues.”

“They overruled Roe in a case where the petition for certiorari didn’t urge that position,” Litman said. “They resolve the EPA’s authority over climate change in a case involving a regulation that had never gone into effect and that didn’t obligate the parties to do anything.”

Conservatives have hailed the term as one for which they have waited years. But it was a discordant path.

The court’s landmark decisions were not handed down in historic pronouncements from the bench but posted on a webpage. The grand marble courthouse is off-limits to the public, the result of the pandemic and threats against the justices, who now work behind a high black security fence.

Inside, tensions reportedly are high, the result of a leak of Justice Samuel A. Alito’s draft decision in Dobbs and the investigation into how it happened. Police are positioned outside the justices’ homes, and a man has been indicted on charges he planned to kill one of them.

The purported target was Justice Brett Kavanaugh, 57, nominated by President Donald Trump and confirmed in 2018 after an explosive confirmation process that split the nation.

He now seems to occupy the most pivotal spot on the court.

“It’s pretty clear he is as close to a bellwether as any of the justices,” said University of Texas law professor Steve Vladeck, who analyses the court’s voting records both in their decisions in argued cases and the “shadow docket” of rulings the court makes in emergency applications.

Kavanaugh was in the majority in 95% of the cases this term, and Vladeck said Kavanaugh has never been recorded on the losing side in one of the court’s emergency orders; he often is the deciding vote.

Kavanaugh has stepped into the role once played by Justice Anthony Kennedy, and that alone “shows how the court has shifted to the right,” Garre said. “Justice Kavanaugh now has enormous influence on how far the court goes. His separate concurring opinions [in Dobbs and the gun case] drew limits on the decisions that all but bind the court, for now, given his key role.”

Kavanaugh was a law clerk to Kennedy, and Kennedy’s support was instrumental in Kavanaugh’s elevation from the U.S. Court of Appeals for the D.C. Circuit. Nevertheless, Kavanaugh was also the key vote to overturning the compromise Kennedy had helped broker in 1992 that reaffirmed the right to abortion. And his replacement of Kennedy has made the court more receptive to gun rights, and to accept challenges to gun control laws.

Barrett has played a key role as well. Her replacement of the liberal Justice Ruth Bader Ginsburg appears to have emboldened conservative justices to take up cases that might not have been reviewed in the past – abortion and the Second Amendment both are areas where challengers were frustrated with the court’s hesitancy until Barrett’s arrival.

The term revealed a court more inclined to bicker than to set aside differences in hopes of presenting a united front. The number of 8 to 1 cases – which means one justice refused to go along with the majority and wrote separately to note disagreement – increased, according to statistics compiled by Scotusblog.

As a result, only 29% of cases were unanimous, the lowest rate since the website began compiling the statistics two decades ago.

More were decided on a 6 to 3 vote, and 14 of the 19 decisions in that category were polarized decisions in which all six Republican-appointed justices were in the majority and all three Democratic-appointed justices were in dissent.

The court’s liberals, in the final term of Justice Stephen Breyer’s four decades of judicial service, were largely sidelined. Breyer, Sonia Sotomayor and Elena Kagan each were in the majority fewer times than last term, and they vented in a series of sharply worded dissents.

“A restless and newly constituted court,” was Sotomayor’s description of her colleagues in one dissent. The majority “continues to dismantle the wall of separation between church and state that the Framers fought to build,” she added in another.

Kagan accused the majority of inventing standards to achieve its goals in the EPA case, which limited the agency’s authority to regulate power plants in combating climate change.

“The current Court is textualist only when being so suits it,” Kagan wrote, again on the short end of a 6-to-3 decision. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”

And the three liberals combined on a 60-page lament on the overruling of Roe. Previous courts, they wrote, thought the American public “should never conclude that its constitutional protections hung by a thread – that a new majority, adhering to a new ‘doctrinal school,’ could ‘by dint of numbers’ alone expunge their rights.” The quotes are from Planned Parenthood v. Casey, one of the abortion cases overturned. “It is hard – no, it is impossible – to conclude that anything else has happened here.”

Alito responded by quoting Chief Justice William Rehnquist’s dissent in the same case.

“The Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution.”

The proposition will be tested, as opinion polls show the decision to overturn Roe unpopular and a Gallup poll found the court’s approval rating plummeting.

It is the court’s reputation that has been Chief Justice John G. Roberts’s preoccupation, and he has pursued its protection in the past by advocating an incremental approach to change in many areas.

But on abortion, the most important decision of his career, he was unsuccessful. Although, like Kavanaugh, he prevailed in 95 percent of the court’s cases, he was unable to forge a compromise that would protect Roe while opening the door for increased restrictions on abortion.

Moreover, he was unable to draw either Kavanaugh or Barrett to his side earlier in the term, when the court confronted a Texas law that banned abortion after six weeks and was designed to avoid the court’s pre-enactment scrutiny.

Roberts wrote only for himself in the Dobbs case. But he wrote the EPA decision, and the court’s movement on religion cases has followed his lead.

“The chief is still in the majority in most cases and authoring major decisions, but the biggest takeaway from this term is that he no longer has control of the brakes,” said Garre, the Bush solicitor general. “And as Dobbs shows, that can make all the difference.”

Vladeck agreed.

“Roberts differs from the other conservatives only about how quickly the court is moving, not where it’s ending up,” he said.