The last time the conservative ruling rate even rivaled that of the term that ended Thursday was during Chief Justice John G. Roberts Jr.’s first term, which began in 2005.
Since then, the final days of Supreme Court terms have tended to end with a mix of rulings pointing in different ideological directions. That changed this week, with a series of results that left conservatives jubilant and energized by the court’s leadership and distraught liberals.
“Every year since John Roberts became chief justice, the court’s results at the end of term have been less conservative than many court watchers feared at the start of term,” said David Cole, national legal director. of the American Civil Liberties. Union. “This time the doomsdayers have it all figured out, as the court has traded caution for raw power.”
This can only be the consequence of the three justices President Donald J. Trump appointed to the court and notably his appointment of Justice Amy Coney Barrett, who joined the court after the 2020 death of Justice Ruth Bader Ginsburg. .
In the decades before Judge Barrett arrived, the court was tightly divided. This meant that the member of the court at its ideological center — Justice Anthony M. Kennedy, then Chief Justice Roberts — wielded enormous power. They both leaned to the right, but they tended to score a few major liberal victories in each term.
The dynamic on the new court is different and lopsided, with six Republican nominations and three Democrats. The middle judge appears to be Justice Brett M. Kavanaugh, appointed by Mr. Trump to replace the more liberal Justice Kennedy. In the just-ended term, Justice Kavanaugh moved to the right, voting in a conservative direction 79% of the time in split cases in which the court heard arguments and issued signed opinions. During the previous mandate, this number was 58%.
The court’s shift to the right included all sorts of legal issues, said New York University law professor Melissa Murray.
“Although most Americans are focused on the cataclysmic abortion decision, there have actually been a number of back-to-back decisions this quarter,” she said. “On critical issues such as gun rights, religious freedom, federal remedies, government discourse and federal regulatory authority, we have seen a conservative bloc eager to make the most of its supermajority 6 -3.”
The term was also notable for its division. There was at least one dissent in 71% of the court’s signed decisions in litigated cases, the highest rate in nearly four decades, according to compiled data by Professor Epstein, Andrew D. Martin of Washington University in St. Louis and Kevin Quinn of the University of Michigan.
The three liberals on the court were acutely aware that they had been sidelined by what Justice Sonia Sotomayor called, dissenting from a ruling that made it harder to prosecute federal officials for constitutional violations, “a restless and newly constituted”.
“The majority rejected Roe and Casey for one and only one reason: because they always looked down on them, and now they have the votes to reject them,” they wrote. “The majority thus substitutes a rule of judges for the rule of law.”
The court ruled on 58 cases, a slight increase from the last two terms, which had been affected by the pandemic. But the number of signed decisions in litigated cases was nevertheless the third lowest since 1937.
Nineteen decisions were decided by a 6-3 vote, and in 13 of them the three Democratic appointees dissented. These cases included cases on abortion, gun rights, climate change, school prayer, government aid for religious schools, the death penalty, campaign finance and prosecution limits. against government officials.
“The Supreme Court went much further, much faster than I expected,” 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, Supreme Court scholar at Latham & Watkins, “and there are real and significant differences between how far to push the law in one direction more original and how fast.”
The most significant example of this is the opinion of Chief Justice Roberts in the abortion case, which would have upheld the restrictive Mississippi law at issue, but refrained from nullifying Roe in so many words. The Chief Justice’s failure to attract a single vote for this approach was telling, Prof Epstein said.
“The court has morphed into a divided, partisan, maximalist and militant court that Roberts has opposed for nearly two decades,” she said. “At least for now, he’s lost the fight.”
The members of the court who most often agreed in the split decisions were the Chief Justice and Justice Kavanaugh, at 98%. The two justices least likely to vote together in such cases were Justices Sotomayor and Clarence Thomas, at 14%.
Among appointees by the presidents of different parties, the highest rate of agreement was between Chief Justice Roberts and Justice Elena Kagan, at 48%.
But the bigger story of the term was the impotence of court liberals, who voted with the majority in split cases just 48% of the time. Conservative justices voted with a majority 81% of the time. The 33 percentage point gap between the two blocs is about double the average for previous terms.
The cases and statistics reviewed so far relate to what is known as the merits brief, where the court receives a full brief, hears arguments and renders reasoned decisions. The court has also ruled on dozens of cases on what critics call its shadow case, where judges often issue concise but consecutive orders shortly after receiving emergency requests and without hearing oral arguments.
Abortion, voting and vaccine cases have all been brought to court through emergency applications this quarter. So did a request by Mr. Trump to block the release of White House records relating to the Jan. 6 attack on the Capitol.
The court rejected Mr Trump’s emergency request in January, with only Judge Thomas noting a dissent. 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 action to overturn the vote. Legal ethics experts say Judge Thomas should have recused himself.
Analyzing emergency requests is tricky, but a pattern 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 Conservative at a very high level. assess. “The suggestion here is one of extreme activism rushing to push conservative interests and causes,” wrote Professor Epstein and Pablo Aabir Das, a recent graduate of the University of Southern California Law School, in a data analysis.
The term has been 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 public high school coach could pray at the 50-yard line after his team’s games, the majority turned to “historical practices and understandings.” In expanding gun rights, the majority told lower courts to “assess whether modern gun regulations are consistent with the text and historical understanding of the Second Amendment.”
And in deciding there is no constitutional right to abortion, the majority focused on “how states regulated abortion when the 14th Amendment was passed” in 1868.
The three liberals on the court dissented in all three cases, calling the originalism narrow and wooden. In a joint opinion in the abortion case, they wrote that “the authors have defined the rights in general terms, to allow for future evolution of their scope and meaning”.
Mr Martinez, a Supreme Court specialist at Latham & Watkins, said the developments were telling in two ways.
“First,” he said, “it is clear that a majority of the court is firmly committed to an originalist understanding of the Constitution rooted in the text and history of the document. Second, that majority will act boldly to apply his originalist philosophy in ways that curb some of the perceived excesses of 20th-century “living constitutionalism”, even when 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 outside influences such as concern about public reaction to our work,” he wrote.
Public approval for the court is certainly in freefall. In a Gallup poll taken after the leaked abortion bill but before the official decision, for example, public confidence in the court fell to 25%, the lowest in nearly 50 years in which the investigation was carried out.
Professor Grove said the court’s authority could not withstand a lasting loss of public trust.
“When you lose enough institutional legitimacy, people just won’t obey your decisions,” she said. “We are not close to that point yet. But we could get to this point.
The court is not slowing down. During his next term, which begins in October, he 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 the First Amendment right to refuse to work on projects. involving same-sex marriages.
On Thursday, as they were about to start their summer recess, the judges agreed to hear another blockbuster, which could radically reshape the US election, about the power of state legislatures to set voting rules .
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