The Roberts Court Isn’t Getting More Moderate
The Supreme Court issued two rulings recently on voting rights that led some observers to claim that the Court was more moderate this term than last year. “Along With Conservative Triumphs, Signs of New Caution at Supreme Court,” one headline read in The New York Times. But on issues including affirmative action, discrimination against same-sex couples, and Biden’s student loan debt relief, the Court was as conservative as ever. Even the voting rights decisions were less moderate than the initial reactions suggested. This is still Senator Mitch McConnell’s Court, willing to jettison precedent to achieve its ideological goals.
The history is familiar but worth reviewing. In 2016, McConnell, the Senate Republican Leader, refused to give a hearing to Judge Merrick Garland, President Barack Obama’s Supreme Court nominee, even though Garland was highly qualified as the senior member of the nation’s second-highest court. McConnell claimed that the president’s nominee should not be confirmed in a presidential election year, even though the vacancy came open in February—nine months before the election—when Justice Antonin Scalia died. This stalling tactic allowed Donald Trump to nominate Neil Gorsuch to the Court in 2017. The Coloradan has frequently voted with Justices Clarence Thomas and Samuel Alito (except in cases involving tribal rights, where Gorsuch has been a champion for Native Americans). Then, just before the 2020 election, after Justice Ruth Bader Ginsburg died in mid-September, McConnell pushed through Amy Coney Barrett a mere eight days before the 2020 election and after millions of Americans had already voted. Thanks to McConnell, the Court now typically issues 6–3 rulings in the most controversial cases.
The conservative six have not been shy about abandoning decades of precedent. Of course, last year, they overturned Roe v. Wade and Planned Parenthood v. Casey in the Dobbs decision on abortion rights.
The Court acted in a similarly audacious way this year. It upended over 40 years of jurisprudence to declare an end to using race as a factor in college admissions, striking down Harvard’s and the University of North Carolina’s holistic consideration of race as one part of an applicant’s background. The majority did not explicitly say it overturned decades of precedent, as Alito did in Dobbs, but its ruling has that effect.
Similarly, the Court permitted discrimination against a protected class of Americans, allowing a wedding website designer to refuse services to a same-sex couple based on her religious objection to gay marriage. The Court credited her claim that her websites are speech and said that Colorado could not force her to violate her First Amendment rights through its standard anti-discrimination law that would have required her not to refuse service. Justice Sonia Sotomayor saw no limiting principle in the decision, noting that it “threatens to balkanize the market and to allow the exclusion of other groups from many services.”
The election law cases this year also were not necessarily pro-voting rights. They just weren’t as shockingly anti-voter as some of the Court’s previous rulings, including the infamous 2013 decision in Shelby County that neutered the Voting Rights Act’s preclearance requirement for areas of the country with a history of voting discrimination. This year, in another Voting Rights Act case, the Court refused to adopt Alabama’s brazen argument to gut the act’s protections further, instead maintaining the status quo that says a state cannot draw district lines in a way that harms racial minorities. But Justice Brett Kavanaugh, who along with Chief Justice Roberts joined the three liberal justices, offered an important caveat in his concurring opinion: “The authority to conduct race-based redistricting cannot extend indefinitely into the future.” As Kavanaugh provided the crucial fifth vote for the majority’s opinion, his statement suggests that this aspect of the Voting Rights Act may live for only a little while longer.
In the other election case, Moore v. Harper, the Court rejected a radical theory that would have limited state courts’ ability to use their state constitutions to protect voters. But Roberts included an ominous statement in his majority opinion: “State courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” Essentially, the Court reserved the power for itself to overrule state court decisions that uphold the right to vote under state constitutions without explaining how to evaluate whether state courts have gone too far. Normally, a state’s highest court has the final say on that state’s constitution. But the Supreme Court kept that power for itself, which could impact the scope of election litigation as the 2024 campaign heats up. It seemed to echo Bush v. Gore in 2000, in which the Supreme Court shut down the Florida recount that the state’s supreme court had authorized under state law.
Both of these voting rights decisions were not moderate. They only seemed that way because they rejected extreme, outlier theories that no judge should have taken seriously.
Ultimately, then, the Roberts Court remains as conservative as ever. To be sure, not all of the Court’s decisions were 6–3 on ideological lines. For example, there was an interesting mashup of justices in a case where a plaintiff may sue a railroad, with conservatives and liberals on both sides. But in the most salient disputes, the Court is solidly conservative. And even the cases that seemed more moderate, at least on voting rights, left the door open for the Court in the future to issue even more extreme opinions.
McConnell, now 81 with 38 years of Senate service behind him, said that changing the Court’s composition was one of his proudest accomplishments. We are only just beginning to see the stark consequences of his actions.
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