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Supreme Court conservatives flex in term full of controversial cases

Trajectory of the court appears unlikely to change in a new term in October, even with a new justice

Cardboard cutouts of the conservative Supreme Court justices are  propped up by abortion rights activists in front of the court before the decision to overturn Roe v. Wade was handed down last week.
Cardboard cutouts of the conservative Supreme Court justices are propped up by abortion rights activists in front of the court before the decision to overturn Roe v. Wade was handed down last week. (Bill Clark/CQ Roll Call)

The Supreme Court ended its term with the conservative justices bending the law sharply rightward in a series of momentous decisions on abortion, gun rights, environmental regulations and religious rights that will reverberate for decades.

The decisions represent triumphs for a conservative legal movement that has sought for decades to remake American law and found its moment in a high court with a bolstered 6-3 conservative tilt that took on issues long linked to Republican policies.

The term that ended Thursday showed that majority “really flexing its muscle” in the cases it selected and the decisions it issued, said Josh Blackman, a professor at South Texas College of Law Houston.

Chief Justice John G. Roberts Jr., who has expressed a desire to maintain the court’s reputation as nonpartisan, highlighted that shift when he criticized his fellow conservatives for an abortion case decision that is a “serious jolt to the legal system.”

But five justices, including three Donald Trump appointees, voted to undo the 1973 decision in Roe v. Wade and wipe out the constitutional right to abortion, an outcome the conservative legal movement had sought for decades.

“The court has not moderated at all. The court could have taken the Roberts approach in the abortion case, but they didn’t,” Blackman said. “In these big cases they really pushed further than they could have to decide them.”

The result was a court under more scrutiny. A draft opinion was leaked for the first time in modern history, prompting Roberts to launch an internal investigation to find out who did it. The court erected protective fencing around the building. Protesters targeted the homes of justices, and Congress passed a law that expands police protection for justices’ families.

Although Democrats control both Congress and the presidency, a closely divided Senate has frustrated many attempts at passing legislation on the issues the court ruled on. President Joe Biden and Senate Majority Leader Charles E. Schumer, D-N.Y., have used the Supreme Court’s decisions as a rallying cry heading into the midterm elections.

In a statement Thursday, Schumer said a decision on environmental regulations “adds to a number of dangerously outrageous decisions that have rightly tarnished the public’s confidence in the Court — every Republican who had a role in putting these six justices on the bench are complicit in the devastating impacts of its extremist decisions.”

More ahead

In 6-3 decisions along ideological lines, the court this term ended the constitutional right to an abortion, curtailed the power of states to regulate the carrying of firearms in public, limited the power of federal agencies to regulate greenhouse gas emissions and, in two cases, sided with religious liberty when it clashed with public schools.

The court’s three liberal justices criticized the majority in dissents. In a rare joint dissent on the abortion case, the justices argued that none of the facts had changed since the court last considered restrictions on abortion.

“The Court reverses course today for one reason and one reason only: because the composition of this Court has changed,” the three wrote.

The trajectory of the court appears unlikely to change when the court starts a new term in October, even with a new justice. On Thursday, Justice Stephen G. Breyer officially retired and Justice Ketanji Brown Jackson took her oath of office, becoming the first Black woman to sit on the court.

But Jackson’s appointment doesn’t alter the court’s ideological balance, and the justices are already set to decide cases next term that could reshape congressional districts, affirmative action in higher education, the scope of the Voting Rights Act and the power of state legislatures to control election rules without court review.

Those cases could build on decisions from this term that altered the court’s approach to the Constitution. Blackman noted that in multiple cases, the court jettisoned balancing tests that have been used for decades in favor of strict interpretation of constitutional text and historical practice.

Blackman said the court came out swinging for traditional modes of legal analysis and instead emphasized its understanding of history and the Constitution.

Julia Mahoney, a professor at the University of Virginia Law School, said the conservative justices simply applied principles they had written about for years.

“Although many of the cases decided this term are, of course, high profile and very important, I do not think that this term marks a significant departure from the court’s approach last time,” Mahoney said.

Public perception

David Cole, legal director for the ACLU, said he saw the major decisions this term as a “radical step that could do real damage” to the Supreme Court going forward.

“I think we have seen a sharp and bold and heedless turn to the right by a new set of justices who are exercising their power in a dramatic and problematic way,” Cole said.

Cole argued that although the court purported to rely on historical precedent, it discarded historical facts that did not suit the preferred decision. He pointed to Justice Clarence Thomas’ opinion in the gun case, in which he minimized laws from the 1700s that restricted the right to bear arms.

“There is a triumph of originalism, but it is a faux originalism, because they are applying history and tradition in some cases and essentially writing off the history and tradition the court doesn’t like,” Cole said.

The court’s decisions this term, particularly overturning the constitutional right to an abortion, have endangered its place in American society, Cole said.

“It is important for people to see the court as acting on principle, not politics,” Cole said. “When you have a court that is lopsided and is willing to overturn a decision like Roe v. Wade, the public is likely to see the court as political, not principled, not open-minded and not deserving of the trust the Supreme Court has had for two centuries.”

He pointed to polls showing majority support for abortion access and low support for the Supreme Court. A Gallup poll released last week showed a historically low 25 percent of the country had a “Great deal” or “Quite a lot” of confidence in the Supreme Court, down 10 percent from a year ago.

Activists like Glynda Carr, president of Higher Heights for America PAC, said she looks at the end of the term with “mixed emotions,” as it has brought the end of Roe v. Wade as well as the first Black woman to serve on the court.

Carr, whose organization advocates to boost Black women’s representation in political office, noted that while Jackson’s vote will not alter the court’s “political lens,” she will have a unique voice on the Supreme Court.

“Her voice will be in that room when they discuss cases, and I think her presence provides a viewpoint that has been missing from her colleagues on the bench,” Carr said.

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