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‘A court without a middle’: Supreme Court term signals changes ahead

The five conservative justices sent signals they want to undo long-standing precedents they think were wrongly decided

Supreme Court nominee Brett Kavanaugh is sworn in during his Senate Judiciary Committee confirmation hearing in Hart Building on September 4, 2018. Kavanaugh’s first Supreme Court term on the bench . (Photo By Tom Williams/CQ Roll Call)
Supreme Court nominee Brett Kavanaugh is sworn in during his Senate Judiciary Committee confirmation hearing in Hart Building on September 4, 2018. Kavanaugh’s first Supreme Court term on the bench . (Photo By Tom Williams/CQ Roll Call)

The Supreme Court started its term last October amid the political divisiveness of Justice Brett M. Kavanaugh’s confirmation process and with a much more private battle among the justices unfolding through the last day of the term Friday.

The departure of former Justice Anthony M. Kennedy after a decade as the court’s ideological axis, and the arrival of a more conservative Kavanaugh, sparked a new dynamic among the justices and a burst of writing as they staked out legal territory.

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The court was expected to solidify its conservative tilt. But the question over the last nine months was just how far and how fast that would happen on major issues such as abortion rights, LGBT rights and the reach of government agencies.

“You could sort of think of this year as the conservative majority getting its sea legs,” said Joshua Matz, a former Kennedy clerk who is now counsel at Kaplan Hecker & Fink law firm. “They’re trying to figure out where they agree and where they disagree.”

By the end, the court did not shift rightward as much as it could have and there were no blockbuster decisions. But the five conservative justices sent strong signals they want to undo long-standing precedents they think were wrongly decided.

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“We’re going to look back on this term as relatively modest, and more of a harbinger of things to come than a decisive turning point in the court’s trajectory,” University of Texas law professor Steve Vladeck said.

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The justices often wrote separately to express their own views. There were more dissents this term than in either of the past two terms, and even when they agreed there were splintered votes and justices writing separately.

And the coalitions that formed in 5-4 decisions look very different from last term, said Adam Feldman of Empirical SCOTUS, who analyzes data for insights into the justices. Each of the conservative justices joined the liberals to form a five-justice majority on at least one case, with Justice Samuel A. Alito Jr. doing so for the first time since he joined the bench.

“We have swing votes but no longer a swing voter,” Feldman said.


But Alito’s decision to join the liberal wing to uphold a federal sex offender registration statute was not so much about agreeing with them on the case as it was a sign of a bigger rightward shift to come through unraveling of previous rulings.

Alito wrote separately to say that he agreed with the decision only because the court didn’t have the votes to overrule a precedent since 1934 about Congress delegating authority to agencies — an issue that conservatives say adds to the growth of government.

“If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort,” Alito wrote. Three conservative justices would reconsider the approach. Kavanaugh did not participate in the case, but could supply the fifth vote to do so the next time the issue goes to the high court.

Justice Clarence Thomas, arguably the court’s most conservative member, wrote separately in different cases and criticized Supreme Court rulings that legalized same-sex marriage and abortion rights.

“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” Thomas wrote separately in a decision that upheld one of the court’s long-standing criminal law doctrines. It was one of several lines court observers took as a flashing sign that the court could soon look to overrule decisions they don’t like.

The liberal justices aired their concerns about the ease with which conservatives want to undo prior rulings. Justice Stephen G. Breyer, in a May decision where the majority overturned a precedent related to lawsuits against states, wrote of the dangers of reversing legal course “only because five Members of a later Court” decide that an earlier ruling was incorrect.

“Today’s decision can only cause one to wonder which cases the Court will overrule next,” Breyer wrote.

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And a month later, Justice Elena Kagan referred to Breyer’s warning when she sounded a similar alarm in a decision that overturned another precedent. “Well, that didn’t take long,” Kagan wrote. “Now one may wonder yet again.”

Chief Justice John G. Roberts Jr., who has aired concerns about the court harming its reputation by overstepping its role and appearing too political, showed signs that he could slow the rest of the conservative wing.

Roberts joined the liberal wing in a 5-4 decision that declined a chance to overrule two long-standing precedents that make it easier for government agencies to defend their regulations from legal challenges in cases about the environment, health care and consumer protection.

The rest of the conservative wing preferred to scrap the doctrine in part because they say it gives agencies too much power to shape the law and how it is enforced and interpreted. Justice Neil M. Gorsuch wrote separately to call the ruling “more a stay of execution than a pardon” for the so-called Auer doctrine.

And Roberts joined the liberal wing in one of the term’s most high-profile cases, blocking the Trump administration from adding a question about citizenship to the 2020 census for now, and asked the Commerce Department to offer a better explanation for why it made the move.

“There is not a solid majority that knows where it wants to go on lots of issues,” Matz said. “They know they want to go generally rightward but they may not agree on how quickly or on exactly what rightward means.”

Kavanaugh, in his first term, voted with the conservative wing on the term’s four biggest cases in a way that signaled he would not be a so-called swing vote in the way that his predecessor had been.

Kennedy was generally conservative but sometimes sided with the liberal wing, and his presence had a moderating force on the court since both sides tried to court his vote.

One of the more telling cases for the difference between them was Kavanaugh joining the conservative majority in a 5-4 decision that found courts could not rein in partisan gerrymandering — something that Kennedy had not been willing to foreclose during his time on the bench.

“What we’re seeing is a court without a middle,” Vladeck said.

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