In new term, Supreme Court conservatives poised to make their mark
It may not feel that way, but the United States Supreme Court has stayed fairly quiet over the past four years.
To be sure, there have been a few big decisions – perhaps most notably the 5-4 decision in June that federal courts can’t place limits on partisan gerrymandering. Rancorous partisan battles to confirm two new justices have also dominated the headlines, but when it comes to the court’s main job – interpreting the toughest statutory and constitutional questions – significant developments have been few and far between since Justice Antonin Scalia died in 2016.
That could be about to change, and quickly.
And public confidence in the court – now arguably more reliably conservative than at any point since at least the 1970s – could be in danger as a result, experts say.
This will be the first full term for the new five-justice conservative majority forged by President Donald Trump. Justice Scalia and the moderately conservative Justice Anthony Kennedy, who retired last year, have been replaced by the more reliably conservative Justices Neil Gorsuch and Brett Kavanaugh, and the court’s docket is already loaded with potentially landmark cases on LGBTQ rights, abortion, religious freedom and school choice, and protections for young unauthorized immigrants.
“We’re in an [unusual] position now with so many justices who” share similarly conservative judicial philosophies, says Kimberly West-Faulcon, a professor at Loyola Law School in Los Angeles. “I have no reason to believe that all five of them have any interest in laying low for a term.”
“Fair share” of big cases
The new conservative majority has not been seen much to date. Last term only seven of the Supreme Court’s 72 opinions split 5-4 along partisan lines. One of those was the landmark decision to not place limits on partisan gerrymandering, but so far it has been more common to see different coalitions.
Justice Gorsuch joined his liberal colleagues in four 5-4 cases last term, for example, and Chief Justice John Roberts – widely considered the ideological center of the court – did the same in the 5-4 decision striking a citizenship question from the 2020 census.
“We don’t go about our work in a political manner,” Chief Justice Roberts told an audience at the Temple Emanu-El’s Streicker Center in New York. “When you live in a politically polarized environment, people tend to see everything in those terms,” he added. “That’s not how we at the court function, and the results in our cases do not suggest otherwise.”
Justice Ruth Bader Ginsburg, the court’s senior justice and one of its most progressive, concurred. The justices agreed “considerably more often” than not last term, she said in a July interview. Yet Justice Ginsburg added that this term “I can safely predict that we will have our fair share of closely-watched cases.”
On the second day of the term, the justices will hear three cases regarding whether federal civil rights law protects gay and transgender people from employment discrimination. Next month, the court will hear a case questioning whether the Trump administration’s decision to rescind the Obama-era Deferred Action for Childhood Arrivals program – which gave a measure of protection from deportation for unauthorized immigrants brought to the U.S. as children – was lawful.
In December, the court is scheduled to hear a case challenging a New York City gun control law. (The law has since been amended, however, meaning the justices could dismiss the case.) The court has also agreed to hear a case over the constitutionality of using state tax-credit scholarship programs at religious schools, as well as a case concerning congressional appropriations for the Obama-era Affordable Care Act.
As with last term, court watchers say, the five conservative justices are unlikely to be in constant agreement.
“It’s pretty clear the conservative bloc on the Supreme Court is more coherent and united than when Justice Kennedy was on it,” says Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School.
“But by no means is it a monolith,” he adds. “On some of these cases there will be one conservative justice who does something we don’t expect.”
Where that could happen is unclear, however. Justice Kennedy, while mostly conservative, was a pivotal vote affirming gay rights. And while he often joined his conservative colleagues in supporting religious liberty, the current court could take an even broader view of the Constitution’s religion clauses.
“We’re going to have a court that lurches right this term,” says Steven Schwinn, a professor at the University of Illinois, Chicago, John Marshall Law School.
“It’ll be a slow drift in some ways,” he adds, but with the LGBTQ rights argument “right out the gate in October [it’s] going to feel like a big lurch.”
The most potentially volcanic cases of the term may not yet be scheduled, or even in the court system.
Last week the justices voted to hear an appeal to a Louisiana law that requires doctors who perform abortions to have admitting privileges at local hospitals. While the court voted 5-4 last term to block the law while it was being appealed – with Chief Justice Roberts joining his liberal colleagues – the law closely resembles one enacted by Texas that the court struck down 5-4 in 2016. The deciding vote then? Justice Kennedy.
Perhaps the only issue more politically divisive than abortion at the moment is the president of the United States, and the justices could encounter several Trump-related legal battles.
The administration is already fighting lawsuits challenging a new rule barring asylum applications from migrants who traveled through another country to reach the U.S. – a policy the justices allowed to go into effect last month pending appeals. Meanwhile, California and 22 other states sued the administration last month over its decision to revoke the Golden State’s ability to set its own tailpipe emissions standards.
Most explosive of all (and anxiety-inducing for someone, like Chief Justice Roberts, concerned about the institutional integrity of the high court) is the prospect of the justices ruling on a case related to an investigation of President Trump or his administration – in particular the ongoing congressional impeachment inquiry.
But a case related to impeachment would be especially fraught for the court now, not just in the context of the hyperpartisan Garland and Kavanaugh nominations, but also President Trump’s attacks on “so-called” judges and “Obama judges” and the surprising regularity with which his administration is making “emergency” appeals to the Supreme Court.
An upcoming study found that in President Trump’s first three years in office, the government has filed 21 “emergency” motions with the court, compared with six in eight years during both the George W. Bush and Barack Obama presidencies. “Historically, the Government has made this kind of request rarely; now it does so reflexively,” noted Justice Sonia Sotomayor in a dissent to the court’s asylum ban ruling last month.
Any subpoena case involving President Trump “is going to be a really hard question for the court, in particular the five conservatives on the court,” says Professor Schwinn. “If the court [sides] with the administration ... I think that’s going to increase the perception that this is a politicized court.”