In 2018 just after he announced his retirement, Justice Anthony Kennedy, who sat at the ideological center of the court for much of his 30-year tenure, met with a small group of reporters. Was he worried that some of the precedents he helped establish--the right to abortion and LGBT rights, for instance--might now be in jeopardy? No, he replied. He was confident that constitutional rights, once established would remain in place.
It took just four years, and the addition of one more Trump appointee to the Supreme Court, to prove him wrong.
There is simply no way to overstate what the Supreme Court did this term. No journalist or scholar alive can remember a term with so many earthquakes in the law.
The data tell the story. The court produced more conservative decisions this term than at any time since 1931, according to statistics compiled by professors Lee Epstein of Washington University in St. Louis and Keven Quinn of the University of Michigan.
In an astounding 62% of the decisions, conservatives prevailed, and more importantly, often prevailed in dramatic ways.
The sweeping nature of the court's decisions, and the sheer number of them amounted to a dream fulfilled for hard-line conservatives and a nightmare for liberals and moderates.
It's not really a nightmare "because you wake up from a nightmare and its over at some point," says Supreme Court advocate Tom Goldstein, publisher of SCOTUSblog. "The problem for the American left," and more centrist conservatives too, is that "they are stuck with" this court "for the next quarter century. And you have a conservative majority that is... moving the goal posts...on every conceivable issue that you can imagine."
Goldstein, who has followed the court's work for nearly three decades, admits it it is hard form him to believe what is happening.
In overturning Roe v. Wade, the court erased a half century of court precedents and eliminated the constitutional right to abortion. Just weeks after the shootings in Uvalde, Texas, the court issued a broadly worded opinion making it more difficult to regulate guns. In a major environmental case, the court curbed the EPA's ability to deal with climate change, and in so doing signaled that other government assertions of regulatory power in the name of health and safety could be on the chopping block. In two religion cases, the court barely mentioned the concept of separation between church and state; rather, it expanded public funding options for religious schools and ruled in favor of a high school football coach who wanted to pray on the 50-yard line, a significant expansion of teachers' rights to public, even ostentatious, religious expression while on the job.
A court without a center
One of the many things that distinguishes this court from any other court of the last 90-plus years is that the current court has no center. Chief Justice John Roberts very occasionally takes a more incremental approach than fellow conservatives, as he did in the abortion case. But the other five conservatives can and did in that case prevail without him. At the same time, Justice Brett Kavanaugh's voting pattern this term moved 20% to the right. So instead of this now being "the Roberts Court," or a court dominated by any one justice, professor Epstein says, it is "the Trump court," because half of the 6-to-3 conservative majority was appointed by the former president.
As for the liberals, says Epstein, they have become "bit players," drowned out by a conservative symphony.
SCOTUSblog's Goldstein points to more data that underlines the conservative supermajority's hard turn to the right. There were more 6-to-3 decisions this term than at any time in the court's modern history, fewer unanimous decisions, and "every single one of the more liberal justices was in dissent more times this year than in any year of their careers, including Justice Stephen Breyer," who has served on the court for twenty eight years.
Some of the effects of the court's work were immediate, with the doors of abortion clinics closing in large swaths of the country. Other effects are already in the works, cases challenging a government regulatory structure that since the New Deal has enabled Congress to give agencies broad power to deal with major health and safety problems--from regulations that protect that air and water, to those aimed at protecting pharmaceuticals, food, car safety, and even the stock market, to name just a few.
Even the government's attempt to mandate a vaccine-or-test regime for large private employers was shot down by the court this term, the exception being vaccine mandates for health care workers and the military. And those exceptions were by a divided vote, 5-to-4 to uphold the mandate for health care workers, 6-to-3 for the military.
Conservative and liberal scholars alike describe the current court as unusually aggressive. The "YOLO court"--You Only Live Once-- said University of Michigan professor Leah Litman. "A court in a very big hurry," said Case Western Reserve professor Jonathan Adler. "Heedless, " said the ACLU's legal director David Cole. "Reactionary, as distinguished from conservative," said Columbia law professor Jamal Greene, noting that the court is going backward in overturning generations of modern law and returning to legal understandings in the seventeen and eighteen hundreds.
While most of the public usually pays only occasional attention to what the court does, it seems to have noticed this time. The court's public approval ratings have plunged, to a new low of as little as 25% in a recent Gallup Poll.
Even more on the chopping block next term
The new conservative juggernaut has hardly finished. It has already agreed to review more hot-button issues next term. Perhaps the most important of these is a case that could radically reshape the rules for federal elections, giving state legislatures almost unfettered control over voting rules, and over the drawing of congressional districts. If the theory prevails, state legislatures could be free to execute all manner of partisan mischief, freed from oversight by state courts, state constitutional provisions, governors, and potentially allowing legislatures a free hand to name electoral college electors in presidential elections.
In addition, the court, after gutting much of the landmark 1965 Voting Rights Act, now seems focused on weakening or eliminating the few remaining protections for minorities in states with a history of racial discrimination. And that, says Columbia's professor Greene, is going to have "a lot of effects, some of them unpredictable."
The court also looks headed to reverse another major precedent on the books for nearly a half century. Since 1978 the court has allowed colleges and universities to use race as one of many factors considered in admissions decisions. In the upcoming term, the court will revisit the issue in cases from Harvard University and the University of North Carolina.
Yet another hot-button social issue that the court has accepted for review is framed as a free-speech case, but is also a test of the right to discriminate against LGBTQ members of the public in commercial services. At issue is whether a woman who designs websites for weddings can refuse to work for for same-sex couples.
If this term's past is prologue, there are seemingly endless questions about where the court might go next. The majority opinion in the abortion case, written by Justice Samuel Alito, is based on reasoning also included in the court's precedents on same-sex marriage, the rights of couples to use and have access to contraception, and even the rights of interracial couples to marry. And while Alito sought to rebut any notion that those decisions are in jeopardy, his abortion opinion mocked a previous abortion decision that was based in part on those very decisions.
Unanswered questions
Then too, this term's abortion decision left many questions unanswered. For instance, can a state ban a person from receiving abortion pills, approved by the FDA, and sent through the U.S. postal system? Can states ban telemedicine appointments with doctors out of state? In states where abortion is outlawed, can states ban advertisements and other information about how to obtain an abortion?
Nor is it clear how far the court is prepared to go in its religion jurisprudence. In upholding a football coach's right to pray on the 50-yard line, surrounded by willing players, the conservative majority discarded one precedent, and seemed to leave room for more precedents to be shattered--among them the court's repeated decisions since 1962 barring teacher-led prayer in the classroom. University of Virginia law professor Douglas Laycock, a strong supporter of the free exercise of religion clause in the First Amendment, wonders how school officials, or lower court judges, are going to differentiate between prayer on the football field and prayer in the classroom.
The court's decision in the prayer case is among many in recent years in which the court has dismantled prior rules that sought to draw a clear line separating church and state. Among them: The court has ruled that the constitution bars federal anti-discrimination laws, including those requiring accommodations for sick or disabled employees, from applying to lay teachers at religious schools; it ruled that a Catholic social services agency could refuse to abide by its contract with Philadelphia, a contract which required it to work with same-sex couples applying to take in foster children; it ruled that closely held for-profit corporations could refuse, on religious grounds, to abide by a federal law requiring insurance to cover contraception for their employees; it ruled that city councils and other public boards are free to open their meetings with explicitly Christian prayers. It ruled that a 4o-foot cross honoring soldiers who died in World War I could remain on state property at a busy intersection in suburban Maryland.
This is far from a complete list, but it is an indication of more such decisions to come, and because religious overtones reach so many aspects of American life--from abortion to gay rights to what we want children to read or know--these decisions will have implications for millions of people. The current court is the most pro-religion of any court in nearly 70 years, according to statistics compiled for an upcoming article in The Supreme Court Review, written by professor Epstein and professor Eric Posner of the University of Chicago. While the number of pro-religion outcomes edged up to 58% overall when William Rehnquist was chief justice (1986-2005), the rate has skyrocketed to over 86% in the years since then with John Roberts as chief justice and the court's composition growing steadily more conservative.
Whatever one thinks of the court's decisions in these and other cases, it quite clearly is not a court that shrinks from controversy or contention. And the subjects it is likely to take on often pit the young against the old, rural against urban, and even black against white--in other words the most polarizing subjects of our times. Abortion, the right to vote, affirmative action in school admission and in employment, the rights of LGBTQ people, the content of history taught in public schools, and even book banning in public libraries--all of that will eventually, in all likelihood, end up in the lap of a very conservative Supreme Court.
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