Term confirms court’s conversion
6-3 majority’s debut features far-reaching conservative rulings
WASHINGTON — The Supreme Court moved relentlessly to the right in its first full term with a sixjustice conservative majority, issuing far-reaching decisions that will transform American life. It eliminated the constitutional right to abortion, recognized a Second Amendment right to carry guns outside the home, made it harder to address climate change and expanded the role of religion in public life.
But those blockbusters, significant though they were, only began to tell the story of the conservative juggernaut the court has become. By one standard measurement used by political scientists, the term that just ended was the most conservative since 1931.
“The data provide stunning confirmation of the Republican-conservative takeover of the Supreme Court,” said Lee Epstein, a law professor and political scientist at the University of Southern California who oversees the Supreme Court Database.
The last time the rate of conservative decisions even rivaled those in the term that ended Thursday was during Chief Justice John Roberts’s first term, which started in 2005.
Since then, the final days of Supreme Court terms have tended to end with a mix of decisions pointing in different ideological directions. That changed this week, with a string of outcomes that left conservatives jubilant and energized about the court’s direction and liberals distraught.
“Every year since John Roberts became chief justice, the court’s results at the end of the term have
been less conservative than many court watchers feared they would be at the term’s outset,” said David Cole, the national legal director of the American Civil Liberties Union. “This time, the doomsayers got it exactly right, as the court traded caution for raw power.”
That can only be the consequence of the three justices former President Donald Trump named to the court and particularly of his appointment of Justice Amy Coney Barrett, who joined the court weeks after the death of Justice Ruth Bader Ginsburg in 2020.
In the decades before Barrett’s arrival, the court was closely divided. That meant the member of the court at its ideological center — Justice Anthony Kennedy
and then Roberts — wielded enormous power. They both leaned right, but they tended to deliver a couple of major liberal victories each term.
The dynamic on the new court is different and lopsided, with six Republican appointees and three Democratic ones. The median justice appears to be Justice Brett Kavanaugh, appointed by Trump to replace the more liberal Kennedy. In the term that just ended, Kavanaugh moved to the right, voting in a conservative direction 79% of the time in divided cases in which the court heard arguments and issued signed opinions. In the prior term, that number was 58%.
The court’s three liberals were perfectly aware that they had been marginalized
by what Justice Sonia Sotomayor called, in dissenting from a decision that made it harder to sue federal officials for constitutional violations, “a restless and newly constituted court.”
In their joint dissent in the abortion case, the three liberal justices said the court had replaced reason with power.
“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them,” they wrote. “The majority thereby substitutes a rule by judges for the rule of law.”
The court decided 58 cases, a slight uptick from the last two terms, which had been affected by the COVID-19 pandemic. But the number of signed decisions in argued cases was the third-lowest since 1937.
Nineteen decisions were decided by 6-3 votes, and in 13 of them, all three Democratic appointees dissented. Those cases included ones on abortion, gun rights, climate change, school prayer, government aid to religious schools, the death penalty, campaign finance and limits on suits against government officials.
“The Supreme Court went a lot farther a lot faster than I expected it to this term,” said Tara Leigh Grove, a law professor at the University of Texas at Austin.
There were, however, some divisions on the right. “The conservative wing of the court is not a monolith,” said Roman Martinez,
a Supreme Court specialist with Latham & Watkins, “and there are real and significant differences between how far to push the law in a more originalist direction and how fast.”
The most significant example of this was Roberts’s opinion in the abortion case, which would have upheld the restrictive Mississippi law at issue but would have stopped short of overruling Roe, in so many words. The chief justice’s failure to attract a single vote for that approach was telling, Epstein said.
“The court has morphed into the divided, partisan, maximalist, activist court that Roberts has pushed back against for nearly two decades,” she said. “At least for now, he’s lost the fight.”