Supreme Court: What did we learn about the new majority?
“There were two very different Supreme Courts in the term that just ended,” said Adam Liptak in The New York Times. The nation’s highest judicial body has spent the past nine months defying predictions that the three Trump-appointed justices and their three conservative colleagues would “regularly steamroll” the court’s remaining three liberals. For most of the term, the 6-3 court was “fluid and unpredictable,” with liberals and conservatives joining to defend Obamacare, a Catholic charity’s right not to violate its beliefs on gay marriage, and college athletes fighting exploitation by the NCAA. But in this term’s last two cases, the court’s “conservative supermajority” reasserted itself in 6-3 rulings along ideological lines, upholding new voting restrictions in Arizona and striking down a California law requiring nonprofit political groups to disclose their donors. Nonetheless, we clearly “do not have a 6-3 conservative court,” said Josh Blackman in Reason.com. Because Justices Amy Coney Barrett and Brett Kavanaugh are not the fiery partisans Trump expected, and often join with Chief Justice John Roberts, we now have a 3-3-3 court containing “a conservative wing, a moderate wing, and a principle-fluid progressive wing.”
The term may not have been “a clean sweep for conservatives,” said Ian Millhiser in Vox.com, but they got “about 80 to 90 percent of what they realistically could have expected.” The attempt to overturn the entire Affordable Care Act was so legally spurious that even Clarence Thomas, a longtime critic of the law, admitted it in a begrudging concurrence to the 7-2 ruling. But make no mistake: With Barrett and Kavanaugh aboard, “the court’s middle is really far to the right.” They clearly favor an expansion of religious exemptions from law, state restrictions on voting, and limitations on unions. But note how even the conservative rulings were made with “judicial restraint and discipline,” said Jay Michaelson in NYMag.com. In Fulton v. Philadelphia, the court unanimously ruled that the city of Philadelphia could not refuse to give a contract to Catholic Social Services because that agency will not consider samesex couples as foster parents—but the narrow ruling “passed on an opportunity to redraw church-state law from scratch.” The cautious Roberts, Kavanaugh, and Barrett prefer to move the ball down the field toward conservative goals incrementally, rather than ignite political firestorms.
There was nothing restrained about how the court “turned back the clock on voting rights,” said Richard L. Hasen in Slate.com.
In the Arizona case, Justice Samuel Alito decided that even if new restrictions might affect minorities more than others, they did not violate Section 2 of the Voting Rights Act. Alito created a “new and impossible test” for those challenging state voting laws: They must prove that a restriction is intentionally designed to suppress votes.
In other cases, the court proved itself a Bill of Rights champion, said David French in TheDispatch.com. It defended a cheerleader’s right to free speech on social media, and limited police officers’ ability to enter the homes of misdemeanor suspects. So far, the court has chosen judicial restraint and to “consistently confound fans and critics alike.” Yet “deep fissures” lie beneath the surface, said Adam Winkler in The Washington Post. In the term that begins in October, the court will wade into cases that put gun control laws and Roe v. Wade on the line. “Don’t be surprised next June if talk of surprising compromises has vanished.”