Unusually agreeable justices end term with conservative wins
WASHINGTON (AP) — An unusually agreeable Supreme Court term ended with conservative-driven decisions on voting rights and charitable-donor disclosures that offered a glimpse of what the coming years of the right’s dominance could look like for the nation’s highest court.
The court began its summer recess with an already consequential list of cases to be argued beginning in the fall. That includes high-profile cases on abortion and guns, topics that seem more likely to sharpen divisions rather than blur them.
But the term the justices concluded Thursday was unusual in several ways, with arguments conducted entirely by telephone because of the coronavirus pandemic and a new justice, Amy Coney Barrett, coming on board a month into the court’s new year.
Her ascent to the bench, the third high court appointee of former President Donald Trump, made it obvious more conservative outcomes could be expected from the court. The court now has six appointees of Republican presidents and a diminished liberal bloc of three justices after the death of Ruth Bader Ginsburg in September. Barrett replaced Ginsburg a month later.
Concerned about any further weakening of the left side of the court, some progressives mounted an aggressive, public campaign to persuade 82-year-old Justice Stephen Breyer to retire and allow a Senate with a thin Democratic majority to confirm a younger liberal chosen by President Joe Biden. Breyer has been mum about his plans.
But ideological divisions were not often on display through much of the year. Unusual alliances of justices formed to decide one case and a different lineup would emerge in the next.
Many of the court’s biggest cases were decided on narrower grounds with broad majorities, including a Philadelphia dispute in which the court ruled unanimously for a Catholic social service agency that objects to working with married same-sex couples who want to be foster parents.
The justices also preserved the Affordable Care Act against its third major Republican-led challenge and vindicated a high school cheerleader whose raised middle finger and run of curse words on a social media post led to her suspension from the school’s squad.
The court ruled unanimously that the NCAA can’t prevent colleges from trying to lure student athletes with enhanced allowances for computers and travel, a step in a larger fight over compensation for college athletes. In a multibillion dollar fight between tech giants, the court said Google did nothing wrong when it copied Oracle code to develop the Android operating system.
Breyer, known for his pragmatic approach to cases, was the author of the code copyright, health care and cheerleading cases in an unusually prominent turn for a justice who is known for trying to bridge the court’s ideological divide.
Breyer’s approach seemed to fit well with the aims of Chief Justice John Roberts, who has repeatedly defended the court against complaints that it is just another partisan branch of government.
Roberts spent the year trying “to prevent anything really huge from happening,” said Drexel University law professor Lisa Tucker, who studies the Supreme Court and describes herself as a progressive.
“I think we saw some sidestepping and some near-misses,” said Tucker, who described it as a term where there were “no big disasters” for liberals before the voting rights decision of the last day.
Scott Keller, who was for several years Texas’ top Supreme Court lawyer, put it differently. “I think the big takeaway from this term is the Roberts court is not swinging for the fences. You could see that in many decisions. The chief justice is trying to get consensus and one method of getting consensus is having narrower rulings,” Keller said.
The chief justice is also leading a court with three relatively new justices: Trump appointees Neil Gorsuch, Brett Kavanaugh and Barrett.
Barrett replaced the late Justice Ruth Bader Ginsburg, joining the court a little more than a month after the death of the liberal icon and just ahead of the presidential election.
In her Senate confirmation hearings, Barrett was impassive in the face of Democratic questioning suggesting that she would be a rubber stamp for Trump, voting his way in any eventual election dispute and casting a crucial vote to strike down “Obamacare,” as the ACA is familiarly known. That was not the case.
One area where Barrett made her presence felt, and Roberts was outflanked by his more conservative colleagues, concerned restrictions on religious gatherings put in place because of the pandemic.
On the eve of Thanksgiving, Barrett provided the fifth vote to overturn restrictions, while Roberts dissented. Prior to Ginsburg’s death, he had joined a four-justice liberal bloc to reject similar pleas.
But the pandemic-caused restriction on worship was the only area in which Barrett’s key role was apparent. Otherwise, she wrote largely unglamorous assignments typical of the court’s most junior justice, joining once in an all-woman dissent with Justices Elena Kagan and Sonia Sotomayor in a Clean Air Act case.
She also teamed with Roberts and Kavanaugh to stake out narrower positions when the other three conservative justices, Samuel Alito, Neil Gorsuch and Clarence Thomas, pushed for broader rulings, including in the Philadelphia foster-care case.
It’s unclear at this point, whether that daylight among the conservatives will persist.
But Aziz Huq, a University of Chicago law professor, said the changed makeup of the court is affecting the cases that come to it. Because of the more conservative lineup, “litigants are changing their strategy and bring more aggressive cases,” Huq said.
Mississippi’s appeal to revive its 15-week ban on most abortions is one such example, Huq said. Before Ginsburg’s death, the court had rejected similar appeals.
The new term that begins on the first Monday in October “will be an even bigger test of this consensus approach that many are identifying from this past term,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center.
The new term, said conservative commentator Carrie Severino, “is going to be great to see.”