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US Braces for New Round of Divisive Supreme Court Clashes

Sept. 26, 2022, 8:00 AM

An air of inevitability hangs over the US Supreme Court. Gone is the 8-foot-high fencing around the majestic building, erected to keep out protesters after an unprecedented leak in May revealed the court was poised to eliminate the constitutional right to abortion. But inside the marble walls, where the justices return on Oct. 3 for their next nine-month term, the court has an ambitious agenda—one by all appearances destined to fulfill more conservative wish-list items that will exacerbate the nation’s political and cultural divides.

Overturning Roe v. Wade with the Dobbs decision in June was merely the biggest jolt in a term that ushered in major doctrinal changes. The conservative majority created a new “history and tradition” test to strike down a century-old New York restriction on concealed-carry handgun permits. The court established the “major questions doctrine” as a powerful curb on federal regulators, using it to restrict what the Environmental Protection Agency can do to tackle climate change without clear congressional authorization. And in ruling that a public school football coach could pray at midfield after games, the justices jettisoned a 51-year-old precedent that had kept the government from promoting religion.

“This court is refashioning the law in huge ways at a very rapid pace,” says Leah Litman, a University of Michigan Law School professor who’s critical of the court, saying the conservative justices “just don’t care” about either the law or the facts. Meanwhile, conservatives spent their summer celebrating. “It was the best Supreme Court term in living memory in terms of being faithful to the Constitution, to its original meaning, to the text of the laws they were interpreting,” says Carrie Severino, president of the Judicial Crisis Network, which has been at the forefront of the conservative push to transform the judiciary.

The rulings last term represent the biggest spoils yet from the Republican power politics that let former President Donald Trump fill three vacancies, including one that arose 11 months before he became president and another created 46 days before voters rejected his reelection. The products of that push—Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch—are now in the vanguard of the movement to refashion the Constitution according to what they see as the original meaning of its provisions. Even Republican-appointed Chief Justice John Roberts, who’s urged his fellow conservatives to take a more measured course, is at times getting left behind.

The revolution is proving as wide as it is deep, as the Republican-appointed justices put their stamp on immigration law, voting rules, criminal procedure, and civil rights. The court ruled 6-3 in 19 cases this past term, the most in percentage terms since at least 1937, according to Adam Feldman, whose Empirical Scotus blog analyzes the court’s work. Of those, 14 produced conservative victories, in fights over capital punishment, campaign finance limits, vaccine requirements, and other issues. In three other cases, the court’s liberals joined with a single conservative only to fall short in a 5-4 decision.

Although the new term will be the first with Justice Ketanji Brown Jackson—appointed by President Joe Biden, she’s replacing Stephen Breyer, the liberal justice who retired in June—it’s otherwise scripted to produce more of the same. A Clean Water Act case could give companies a freer hand to discharge pollutants and let developers construct more houses without getting a federal permit. A Voting Rights Act dispute is likely to mean fewer election districts where racial minorities stand a strong chance of winning. In perhaps the term’s highest-profile clash, the court might overturn decades-old precedents and abolish race-conscious admissions policies at selective universities.

And those are just the October arguments. Later on, the court will consider letting businesses invoke the First Amendment to refuse to provide services for same-sex weddings, even in states with anti-discrimination laws that protect LGBTQ people. And the justices are weighing a case that could cause a seismic power shift in federal elections by stripping state supreme courts of their power to review legislatively enacted voting laws and maps.

Notably, the court easily could have turned away most of these cases without granting a hearing. None stem from the type of lower court disagreement that all but forces the Supreme Court to get involved. What’s spurring the court’s selection of cases is the conservative agenda, says Erwin Chemerinsky, dean of the University of California at Berkeley School of Law. In high-profile areas there’s “very much an aggressive reaching out to change the law in the way that they want to change the law,” he says.

Fifteen months ago, despite the 6-3 conservative majority, a squinting liberal might have seen some reason for hope. The term that ended in July 2021 included a 7-2 decision preserving the Affordable Care Act. The two newest justices, Barrett and Kavanaugh, had hinted they might be more interested in incremental changes than sweeping overhauls. Things were bad but not yet catastrophic.

All such pretenses are now gone, and the court faces at least the specter of a legitimacy crisis, if not a full-blown one. A survey taken in June found public confidence in the court at 25%, its lowest level in Gallup’s 50 years of polling. A Pew Research Center poll conducted in August found a record partisan divide, with only 28% of Democrats approving of the court, compared with 73% of Republicans. All six of the conservative justices are Republican appointees, a fact fueling the perception the court has become a political actor much like the other two branches of government.

“If one judge dies or leaves a court, and another judge comes in, and all of a sudden the law changes on you, what does that say?” liberal Justice Elena Kagan asked at a September event, without naming names or mentioning particular cases. “You know, that just doesn’t seem a lot like law, if it can depend so much on which particular person is on the court. It just seems at that point like all personal preference.”

Yet some of the court’s conservatives are clamoring for still more far-reaching cases. Justice Clarence Thomas used the court’s abortion ruling as an occasion to call for reconsideration of precedents protecting contraceptive use and same-sex marriage, and Justice Samuel Alito has campaigned for even greater protections for religious freedoms. Speaking at a religious-liberty summit sponsored by Notre Dame Law School in July, he decried what he described as “growing hostility to religion” driven by “the new moral code that is ascendant in some sectors.”

That tone is setting the stage for a term likely to be every bit as divisive as the one that just ended. With the conservative legal revolution marching on, the question is increasingly not so much where the Supreme Court is going as how quickly it’s going to get there.

Read next: Social Media Addiction Brings Lawsuits Against YouTube, Facebook

To contact the author of this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Joel Weber

© 2022 Bloomberg L.P. All rights reserved. Used with permission.