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GOP Celebrates Supreme Court’s Most Conservative Term in Years

Kennedy retirement capped a season of 5-4 highlights

The Senate will spend the week working toward Judge Neil Gorsuch’s Supreme Court confirmation vote before the Easter recess. (Bill Clark/CQ Roll Call)
The Senate will spend the week working toward Judge Neil Gorsuch’s Supreme Court confirmation vote before the Easter recess. (Bill Clark/CQ Roll Call)

The Supreme Court ended its term with a number of decisions that split the court along ideological lines, a finish that underscored just how much President Donald Trump’s appointment of Justice Neil Gorsuch influenced the nation’s legal landscape.

Now, with a second Supreme Court nominee to select, Trump has the power to move the court solidly to the right.

The five conservative justices, including Gorsuch during his first full term on the court, voted together against the four liberals on major decisions that aligned with Republican policy outcomes, including cases where the government had reversed positions under the Trump administration.

The 5-4 decisions included upholding Trump’s travel ban, striking a financial blow to public sector unions, keeping the Republican-led Texas legislature’s congressional map, approving Ohio’s process for removing voters from registration rolls, and siding with businesses over employees when it comes to arbitration agreements.

Among other cases, the Justice Department had switched sides in the arbitration case, the Ohio voting case, the union case and another case about administrative judges in the Securities and Exchange Commission.

“In four cases, after careful review, we changed the Department’s position in order to follow the law,” Attorney General Jeff Sessions said in a news release Wednesday. “The favorable Supreme Court decisions in all four cases reflect that we took the proper course of action. The decisions speak for themselves.”

Watch: McConnell Vows Vote on Kennedy Successor ‘This Fall’

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Sen. Sheldon Whitehouse was among Democratic lawmakers who criticized the court’s partisan appearance after a 5-4 ruling Wednesday. The court’s conservatives overturned a decades-old precedent that allowed unions to collect fees from teachers and other public sector employees who were not in the union, dealing a financial blow to unions that often back Democratic candidates.

“We appear to have reached a point where litigants appearing before the Supreme Court in certain matters can anticipate victory or defeat because of the identity of the parties, not the merits of the case,” the Rhode Island Democrat said. “The predictability of these 5-4 partisan decisions by the Republican majority, and the alignment of the outcomes with the interests of the Republican donors, is a cancer on the credibility of the Court.”

Majority Leader Mitch McConnell, whose actions in the Senate led to Gorsuch’s appointment to the court, said a thousand words about the influence of politics on the court this year with one photo his campaign tweeted out Tuesday, as the saying goes.

The Senate had for months during the 2016 election year blocked the nomination of U.S. Circuit Judge Merrick Garland, President Barack Obama’s pick to fill the seat of the late conservative Justice Antonin Scalia. After holding that seat open for Trump to fill, McConnell changed the Senate rules in 2017 to prevent Democrats from blocking a confirmation vote on Gorsuch.

At 10:22 a.m. Tuesday, as the court delivered conservative rulings on pregnancy centers and what remains of the travel ban, McConnell’s campaign organization tweeted a photo of the Kentucky Republican about to shake hands with Gorsuch.

There were no words to accompany the photo. The connection was not lost on Democrats.

“Celebratory tweets by Republican political leaders embracing members of the Court provide a telling symbol of this breakdown,” Whitehouse said.

Trump weighed in on several Republican victories in the Supreme Court in his usual way — on Twitter. He also posted a photo with conservative Justice Clarence Thomas in a visit to the oval office June 23, calling him “a friend and great man.”

Trump’s tweet on the union case said: “Big loss for the coffers of the Democrats!” And on the travel ban ruling, he said: “SUPREME COURT UPHOLDS TRUMP TRAVEL BAN. Wow!”

Trump’s appointee, Gorsuch, was a reliably conservative vote on the major issues, though he did join the liberal wing in one 5-4 case that sided with immigrants in deportation cases.

The prime reason for the conservative tilt to the court’s decisions this term was Justice Anthony M. Kennedy’s consistently conservative votes. Kennedy, appointed by Ronald Reagan in 1988, is conservative but often casts the deciding vote and writes the majority opinions in cases that are split along ideological lines, such as same-sex marriage and abortion rights.

But Kennedy this year sided with conservatives, such as in the First Amendment free speech case to cut down a California law that required pregnancy centers to post information about free and low-cost abortions provided by the state.

And Kennedy did not side with the liberals in any of the court’s 19 decisions that ended 5-4, according to Adam Feldman, a postdoctoral fellow at Columbia Law School and creator of a high court statistics blog, Empirical SCOTUS.

At the same time, Kennedy dashed the hopes of Democrats who hoped he would side with liberals to tamp down partisan gerrymandering in a major redistricting challenge or uphold state anti-discrimination laws in a case that pitted LGBT rights against the religious rights of a Colorado baker who declined to make a cake for a same-sex wedding.

The court issued rulings in those cases that avoided the major substantive issues. And then the justices declined to take up two more cases that presented the same issues.

“This has been Justice Kennedy’s soundest term in quite a while,” Ed Whelan, a blogger at National Review and president of the conservative Ethics and Public Policy Center, wrote on Twitter.

The Supreme Court hasn’t put any major cases on contentious issues on its schedule for the next term, which starts in October.

Kennedy announced his retirement Wednesday, giving Trump his second appointment to the court in the first two years of his administration. McConnell said the Senate would vote on Trump’s pick to succeed Kennedy this fall.

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