Post-Trump supreme court appears willing to embrace judicial activism
On 6 July 2018, four days before Donald Trump selected Brett Kavanaugh to be his second of three nominations to the US supreme court, the then president promised the American people his judge of choice would have nothing to do with “judicial activism”.
“Judges are not supposed to rewrite the law, reinvent the constitution, or substitute their own opinions for the will of the people expressed through their laws,” Trump said, hurling an implicit though unsubstantiated rebuke at liberal judges. “We reject judicial activism and policymaking from the bench.”
But on 1 July 2021, Trump’s three picks for the nation’s highest court joined the three other conservative justices in delivering a majority ruling steeped in judicial activism. The 6-3 opinion, drawn along sharply ideological lines, effectively rewrote the hallowed 1965 Voting Rights Act, the glory of the civil rights movement that guarantees equal access to the ballot box for American citizens of every racial group.
In the process, Kavanaugh, Neil Gorsuch and Amy Coney Barrett and their peers substituted their own opinions for the will of the people. As Elena Kagan, one of the three liberal dissenters, put it in a scorching rebuttal, the court’s rightwing majority had taken the Voting Rights Act – described by Lyndon Johnson, who signed it into law, as “monumental” – and cut it down “to its own preferred size.”
It was a dramatic climax to the first supreme court term that engaged all three of Trump’s nominees. The newly constituted post-Trump court appeared to be reinforcing every American progressive’s nightmare.
Through a combination of sleight of hand and relentless determination, the Republican party leadership with
Trump’s help had transformed the country’s most powerful judicial panel from a finely balanced though conservative-leaning arbitrator into a soupedup motor of rightwing extremism. Would any of the pillars of modern American society erected over past decades – from civil rights to LGBTQ rights, from access to abortion to the foundations of democracy itself – be safe in its hands?
Yet since the 2020-21 term ended, an alternative and more complex analysis has emerged. When you consider the entirety of rulings from the court across the 67 merits decisions it delivered this year, there was agreement between the conservative and liberal wings of the court in several instances.
The end-of-term statistical report from the specialist news outlet Scotusblog tells its own story. Some 43% of cases were decided unanimously, in 9-0 or 8-0 rulings – slightly below the average over the past decade but marginally up from the three most recent terms.
By contrast just 15% of cases, including the Voting Rights Act decision, were handed down along strictly polarized conservative-liberal lines.
Analysts pointed to the court’s resounding rejection of the latest Republican attempt to scupper “Obamacare”, the Affordable Care Act, as evidence of an unexpected degree of concurrence between right and left. In that case only the staunchly ideological Samuel Alito, whose voting record is the most consistently partisan of all the conservative justices, was in dissent.
They pointed too to the 8-1 ruling that backed a high school cheerleader who had been dumped from her squad after she uttered profanities about it on social media. And there was the unanimous decision against the NCAA, the regulatory body for student athletes, over its ban on colleges offering perks to players despite the vast income that college sports generate.
Such signs of harmony between ideologically riven members of the post-Trump court heartened some prominent lawyers and commentators.
David Cole, the influential national legal director of the American Civil Liberties Union, which won the cheerleader case, said: “I think we at the ACLU can to some degree breathe a sigh of relief – it’s nowhere near as bad as people thought.”
But as the dust settles over the term, the realization is growing that the dominant rightwing cadre might be biding their time. Of Trump’s three picks, Gorsuch is 53, Kavanaugh 56 and Barrett 49, and with no retirement age to worry about they potentially have decades of rulings ahead of them.
“I think they are playing a long game,” said Aziz Huq, a law professor at the University of Chicago. “In the long
game, laying foundations and moving incrementally often pays off.”
Taken as a whole, the court’s record this term has consistently veered in a rightwards direction. It’s true that in some cases the conservative justices took small steps when they might have made giant leaps, but their trajectory was not in doubt.
“What’s clear from the term is that the court is unquestionably conservative,” said Elizabeth Wydra, president of the progressive Constitutional Accountability Center. “There have been some instances of consensus, but to me they are one-offs rather than an indication that this is a more moderate court.”
Huq similarly warned American liberals that any hopes they might have that they have dodged a bullet was premature. “This is one of the most conservative supreme courts that the US has ever seen,” he said.
The professor pointed to the Cedar
Point Nursery ruling, in which the conservative justices, voting as a block, delivered a blow to union rights while at the same time expanding the property rights of landowners. The case had been brought by farm owners who objected to organizers entering their fields to recruit agricultural workers.
In the Cedar Point ruling, the majority tore up a 1976 California law that had been the crown jewel of Cesar Chavez’s historic campaign to empower farm laborers. The six conservative justices held that the existing law that permitted unions to go on to the fields to organize workers had violated the “takings clause” of the constitution, which prohibits the government from taking away someone’s property without compensation.
The court’s decision amounted to an extraordinary break with past precedent. It was judicial activism in action.
Huq points out that the radical and destabilizing idea embodied in this ruling – that federal law could not in this case force landowners to grant access to union organisers under the “takings clause” – impinges upon one of the most essential elements of all anti-discrimination legislation. That is the concept, applied for decades, that no one is allowed to stop someone else entering their property, whether it be a rented home or a workplace, on discriminatory grounds.
“This is something that could unravel much anti-discrimination law enacted by both national and state governments since the 1960s,” Huq said.
The conservative justices insisted that the Cedar Point case was different and that they had no intention of applying it generally. But the limitations they placed on their own opinion were so arbitrary as potentially to invite future litigation.
“This ruling may look limited, but it is extremely fragile and could break down in future cases,” Huq said.
A similar deceptive moderation can be seen in one of the big religious liberty cases heard in front of Trump’s third pick, the Catholic justice Barrett, who joined the court last October. In this case, the court allowed a Catholic foster agency in Philadelphia to reject same-sex couples as foster parents on religious grounds.
Some commentators chose to paint the ruling in a rosy hew, highlighting its unanimous nature and the fact that the court, to the dismay of rightwing advocates, chose not to delve into the broader question of whether religious believers have a constitutional right to discriminate against the LGBTQ community. But for Wydra, the message was transparent.
“The court has given a clear signal to those who want to make religious liberty objections to laws that protect LGBTQ rights: it will look favorably on those claims,” she said.
Nowhere were the new Trumpian court’s colors more vividly on display than in its decimation of voter protections.
At a time when Republican state legislatures around the country are promoting hundreds of measures to suppress voting, especially in Black and Latino communities, the ruling is yet another threat to the health of American democracy. It sounds the alarm as the supreme court prepares for a fresh term in October in which it will hear potentially seismic cases over abortion rights and gun laws.
Trump may claim to be the enemy of judicial activism. But the supreme court that he molded in his own image appears to be quite open to the idea, and it may be only getting started.
In the long game, laying foundations and moving incrementally often pays off
Aziz Huq