WASHINGTON – For months, the Supreme Court appeared to rise above partisan strife – becoming a place where rancor could be quieted by compromise. But as is often the case at the nation’s highest court, the justices saved their fireworks for the end.
With a string of unanimous or near-unanimous decisions, often decided on narrow grounds, the court’s nine-month term that wrapped up last week initially upended expectations about how its new 6-3 conservative majority would handle pressing disputes about religious freedom, the Fourth Amendment and the Affordable Care Act.
Then, in its final two opinions, the court’s six conservatives held together against its three liberals to impose curbs on the 1965 Voting Rights Act when voting access has become a political flashpoint and opened a debate about whether campaign disclosure requirements could be subjected to legal challenges.
“The court managed to rise above the partisan divide this term until the last day,” tweeted David Cole, national legal director at the American Civil Liberties Union.
As the U.S. Capitol remained surrounded by fences erected in response to the riot in January, the Supreme Court appeared to be going out of its way to avoid the kind of conservative-liberal, 6-3 splits liberals had warned about for months in fundraising emails. Forty-three percent of the term’s cases were decided unanimously, according to statistics compiled by the SCOTUSblog website – lower than the average over the past decade but higher than the past three years.
Before the rulings on voting rights and charitable donor disclosure Thursday, Chief Justice John Roberts “seems to have decided to try to keep the temperature down,” said Georgetown University law professor Paul Smith. “There does seem to be a divergence within the conservative six about how aggressively to rule on a number of issues.”
Pumping the brakes
Three liberals and four conservative justices joined together to thwart the latest challenge to the Affordable Care Act, deciding that the plaintiffs did not have standing to sue because they were not harmed by the law’s requirements. A unanimous court allowed a Catholic foster care agency in Philadelphia to decline to screen same-sex foster parents on religious grounds.
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Other opinions defied conventional wisdom about the court as conservatives and liberals teamed up in unusual splits. Associate Justice Amy Coney Barrett wrote the majority opinion absolving a police officer from violating a 1986 anti-hacking law when he ran a license plate in exchange for cash – an outcome that meant Americans wouldn’t face federal criminal charges for fudging their profile on dating apps such as Tinder.
Barrett was joined by the three liberals and two conservatives, Associate Justices Neil Gorsuch and Brett Kavanaugh.
The court reached many of its larger-than-expected majorities by crafting narrower-than-expected rulings – at least on first blush. In the Philadelphia foster care decision, the court declined to give what many conservatives had sought: overturning a 1990 precedent that controls analysis of many religious freedom claims.
In a case involving a Pennsylvania high school cheerleader who sued over her punishment for a vulgar social media post, an 8-1 majority ruled that her school violated her First Amendment rights. But they punted on a much broader question about when and how far schools may go generally to regulate a students’ off-campus speech.
That slow-go approach may have been a result of Roberts’ influence, Smith speculated, and a “desire not to have the court suddenly and immediately appear extreme” so soon after Barrett’s rapid confirmation before last fall’s election.
Voting and giving
The dynamic changed last week when Associate Justice Samuel Alito, writing for a 6-3 majority, upheld an Arizona law that prohibited the third-party collection of mailed ballots, a practice critics call “ballot harvesting.” Writing a dissent for the court’s liberals, Associate Justice Elena Kagan called the outcome “tragic” and warned that it “lessens” the Voting Rights Act.
An amendment to the act approved by Congress and signed by President Ronald Reagan in 1982 allowed groups to challenge state election laws if they affect minority voters more than non-minorities. In Arizona, that impact was small – too small, Alito wrote, to outweigh the state’s interest in preventing fraud at the polls. The Voting Rights Act provision at issue still stands, but the court’s decision narrowed the circumstances under which voting rights groups may use it to sue.
Alito’s opinion thrust the court into a tense national debate over the issue of voting rights. After baseless claims that President Donald Trump lost last year’s election because of fraud, conservative states are tightening their voting laws, a shift that critics said is designed to suppress turnout among minorities who tend to vote for Democrats.
In another opinion with potentially far-reaching implications, the court’s six conservatives invalidated a California requirement that charities disclose their largest donors to state regulators. Though the circumstances are limited, the decision appeared to invite challenges to other disclosure requirements, including for political campaigns.
“This term was remarkably devoid of the sort of liberal activism that has characterized many recent terms,” said Carrie Severino, president of the conservative Judicial Crisis Network. The court’s rulings in the voting rights and disclosure cases, she said, “were capstones to a term that was characterized by adherence to the law and Constitution, thanks in part to the addition of Justice Barrett.”
A new justice
When Barrett joined the court in October after the death of Associate Justice Ruth Bader Ginsburg, many Democrats predicted she would drive the court to the right. But the former appeals court judge and Notre Dame Law School professor’s influence has – so far – proved more nuanced than some of those forecasts.
Barrett’s arrival changed the course of a series of emergency cases in which churches and synagogues challenged government COVID-19 restrictions, arguing that they violated the First Amendment by limiting the size of in-person gatherings permitted to worship. When Ginsburg was on the court, those kind of decisions tended to side with public health officials. By the fall, they went instead for preachers and rabbis.
In other areas, Barrett joined Roberts and Kavanaugh in an alliance with liberals, drawing dissent from more conservative justices. In the Philadelphia foster care case, she urged a more middle-ground approach than Alito, Gorsuch and Associate Justice Clarence Thomas.
“She, too, seems to be trying avoid appearing aggressive and ultra-conservative,” Smith said. “But, again, that may just be temporary.”
Barrett, Kavanaugh and Roberts were the three justices in the majority the most during the term, according to the SCOTUSblog statistics. Barrett sided with Roberts in 76% of the term’s decisions, according to the website. By comparison, she sided with liberal Associate Justice Sonia Sotomayor less than half the time.
Despite predictions that the new conservative super majority would undermine Roberts’ power on the court, his influence throughout the term was clear.
“The chief justice remains successful at pushing for broader unanimity and narrower opinions than people expect, as Fulton and the health care case show,” said Jonathan Adler, a professor at Case Western Reserve School of Law.
Some have questioned how narrow the decisions have actually been.
In the Philadelphia case, the court declined to overturn its 1990 decision in Employment Division v. Smith, but its ostensibly narrow ruling left a lot of room for lawsuits that could undermine that precedent in the long run.
Aziz Huq, a University of Chicago law professor, said that before the two big rulings last week, the term could be summed up as “a period of consolidation and seed sowing, rather than a period of dramatic change.” Instead of viewing the Philadelphia case as limited, Huq said he sees it as “potentially a quite fruitful victory for religious liberty.”
The court concluded that whenever there is a secular exception to a nondiscrimination law – even if that exception isn’t exercised – it has to be analyzed with the highest level of constitutional scrutiny. That could have huge implications for issues beyond the conflicts that arise between religious freedom and gay rights.
“While it’s true that nondiscrimination laws that protect LGBTQ individuals often don’t have a discretionary element in them, that’s just not true for many other laws,” Huq said.
In another example, the justices invalidated a California law that permitted labor unions limited time to organize workers on private farms. Roberts, leading the court’s conservatives, said the law amounted to a taking that violated the Fifth Amendment’s prohibition on the government seizing property “without just compensation.”
Writing for a 6-3 majority, Roberts insisted the opinion wouldn’t have broader implications – such as for government inspections at restaurants or power plants. Huq and others are skeptical Roberts’ assurances will be the final word. They predict challenges will question whether similar situations amount to takings.
“The court has a section of the opinion where it says, ‘Don’t worry, this is not a slippery slope, and the world’s not coming to an end,’” Huq said. “It says, ‘Here’s all this stuff that’s not covered,’ and you read it and think, ‘but why?’”
Will Breyer retire?
Speculation about Associate Justice Stephen Breyer’s retirement hung over the final weeks of the term as liberal groups ramped up pressure on the 82-year-old to step down so President Joe Biden can replace him.
Senate Democrats have a tenuous majority in the Senate, which may prove hard to keep when next year’s midterms roll around.
The final day of the term, when justices sometimes make their retirement plans known, came and went Thursday with no definitive word from the court. Breyer could announce his retirement whenever he pleases. Or he could decide to stay on.
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As the most senior justice of the court’s liberal wing, Breyer took the lead on some notable opinions this year. Breyer wrote for the majority turning away the latest challenge to the Affordable Care Act. Days later, he wrote the majority opinion siding with the cheerleader over her school in the First Amendment case.
Artemus Ward, a political scientist at Northern Illinois University, noted that Breyer appears to be at the apex of his influence and power. Maybe, Ward speculated, Breyer is just not ready to retire.
When the court reconvenes in October, its docket has some potential blockbuster cases.
The justices agreed to hear a challenge to New York’s gun licensing requirements that could expand protections for carrying concealed weapons in public, putting a major Second Amendment dispute in front of the justices.
In May, the court announced it would take up a lawsuit against Mississippi’s ban on most abortions after 15 weeks of pregnancy, giving the court’s conservative majority the chance to consider a direct test of the landmark Roe v. Wade decision.
And the high court decided Friday to hear a case from parents who want to use a state tuition program in Maine to pay for religious schools, the latest to question the extent to which a government may impose restrictions that may conflict with religious freedom.
Those polarizing issues, which will be decided months before the 2022 midterm election, will probably offer far more insight into Barrett’s influence – and the direction in which the court’s bolstered conservative majority intends to go.
“If we ever start seeing split rulings from this court that definitively affirm the right to abortion, then it might be time to consider whether there is a moderate wing of this six-justice conservative majority. We are definitely not there,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center.
“The real test,” she said, “will likely come next term.”