Supreme Court (U.S.)

Supreme Court's conservatives mark return to power with major rulings, minor punts

Richard Wolf
 A man bearing an upside down American flag watches as protesters gather outside the U.S. Supreme Court as the court issued an immigration ruling June 26, 2018 in Washington, DC.
Win McNamee | Getty Images

The Supreme Court's conservative majority — stymied in recent years by one justice's sudden death and another's fickle behavior — has come storming back.

From President Trump's immigration travel ban to workers' rights, voting rights and religious rights, the high court handed conservatives a nearly unbroken string of victories in a divisive term that came to a screeching halt Wednesday.

Time after time in the term's waning days, the court's conservative majority thumped its liberal minority in 5-4 decisions, noteworthy in some cases for their breadth and in others for their narrow, almost tortured reasoning. The mood was so divisive that on the 2017 term's penultimate day, two decisions on immigration and abortion prompted liberal justices to read three dissents from the bench.

That was in contrast to several recent terms in which the court delighted liberals with decisions on same-sex marriage, affirmative action, abortion and Obamacare. The best liberals could muster this term were a couple of punts in which the justices sent cases on partisan election maps and same-sex wedding services back to lower courts on procedural grounds.

To be sure, Justice Elena Kagan penned concurring opinions in those cases mapping out potential return trips to the high court. But this week, the justices turned down the most promising new challenges on both issues, delaying any final resolution.

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“The court is moving in a somewhat conservative direction," said Neal Devins, who directs the Institute of Bill of Rights Law at William & Mary Law School. "At the same time, they’re making compromises and ruling narrowly."

Several factors have contributed to the rightward trend, none more important than Justice Neil Gorsuch's first full term as successor to the late Justice Antonin Scalia. It was Scalia's death in February 2016 that left the court with only eight members for more than a year, resulting in several deadlocked votes.

Gorsuch, at 50 the court's youngest member, was in the majority more often than anyone but Chief Justice John Roberts and Justice Anthony Kennedy, the perennial swing vote. He wrote several 5-4 decisions, including a major one upholding corporations' use of individual arbitration rather than class-action lawsuits to resolve workplace disputes.

Had Scalia's seat been filled instead by federal appeals court Judge Merrick Garland — President Obama's choice, who was denied consideration in 2016 by Senate Republicans — that case and the entire term likely would have looked very different.

“The conservatives have had such a bad run the last couple years that by comparison, this is such a demonstrable change," said Josh Blackman, a South Texas College of Law associate professor and creator of the FantasySCOTUS blog.

Thirteen times this term, the court ruled 5-4 along the same ideological lines. That included several decisions beneficial to Republicans and harmful to Democrats: denying public employee unions the right to collect fees from non-members, approving a strict method of purging voters from registration rolls in Ohio (a swing state), and upholding most GOP-drawn election districts in Texas (a future swing state).

By contrast, the court's four most conservative justices have not been on the losing end of any 5-4 rulings — a frequent occurrence in prior years, when Kennedy would join the liberals.

Further pointing to the term's divisiveness: Less than one-third of the court's cases were decided unanimously, a low yield not seen in nearly a decade. Instead, the justices wrote lengthy opinions and dissents almost by rote, turning what had appeared to be routine cases into major disputes.

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Kennedy back in the fold?

Kennedy, most often the deciding vote in close cases, represents another key factor. As he considers retirement at age 81, he has returned to the conservative fold. Over the course of the term, he sided with each of his conservative colleagues more often than any of the liberals — a 180-degree reversal from three years ago.

"The 5-4 decisions broke for the conservatives because Justice Kennedy was on their side," Michael McConnell, a former federal appeals court judge who directs the Constitutional Law Center at Stanford Law School, said. "These things depend heavily on the happenstance of what cases occur in particular terms. I do not think any of the cases this term, taken separately, were surprising votes for Kennedy."

Kennedy's metamorphosis was most apparent this month. Despite a long history of support for gay rights, he authored the court's 7-2 opinion on narrow grounds that absolved a Colorado baker of discrimination for refusing to create a wedding cake for a same-sex couple. And two cases on political manipulation of election districts that hinged on his vote were punted on procedural grounds without a word from him.

That followed several terms in which Kennedy had delivered unlikely victories for the court's liberal wing, led by Justice Ruth Bader Ginsburg. Two years ago, his votes upheld the use of affirmative action in college admissions and struck down burdensome restrictions on abortion rights. The year before, he wrote the court's landmark decision in favor of same-sex marriage and helped to uphold federal subsidies under Obamacare.

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Leah Litman, assistant professor of law at the University of California-Irvine School of Law, says many of those victories were "by and large holding down the fort" by blocking conservatives' efforts on issues such as abortion and health care. By contrast, conservatives' wins — such as the 2010 decision that let corporations spend unlimited amounts on elections and the 2013 ruling striking down a key section of the Voting Rights Act — represented changes in the law.

Another step in that direction was taken Wednesday when the court overruled a 41-year-old precedent that allowed public employee unions to collect fees from non-members. The court's conservatives had been on the brink of such a ruling since 2012; two years ago, without Scalia, they could muster only a 4-4 tie.

"The majority's road runs long, and at every stop are black-robed rulers overriding citizens' choices," Kagan said from the bench — marking the liberal justices' fifth public dissent of the week. "The First Amendment was meant for better things."

Travel ban caps off term

Perhaps the biggest test for conservatives was the uphill battle to win approval of Trump's travel ban. Federal appeals courts dominated by liberal judges had declared it unlawful and unconstitutional, but on Tuesday the five conservative justices gave it their unblemished blessing.

That was particularly significant, Blackman said, because Trump "has been getting his butt kicked in the lower courts" over his efforts to block travelers from majority-Muslim nations, end protections for undocumented immigrants brought to the U.S. as children, and deny funds to so-called "sanctuary cities."

Whether the trend will continue next term and into the future likely depends, once again, on Kennedy. Is he preparing to retire by returning to his conservative roots? Or does he want another shot at issues such as extreme partisan gerrymandering and discrimination against gays and lesbians — cases that could return next spring?

As the court adjourned for the summer Wednesday with no retirement announcement, it seemed Kennedy might stay. The day before, in a short, two-page concurring opinion in the travel ban case, he sounded like a man who wants to help the federal government regain a degree of decorum.

"An anxious world must know that our government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts," he said.

That has given liberals some hope that the court's conservative tilt this term will not turn into a tide in the years to come, with a second Trump nominee succeeding Kennedy.

“There seems to be some evidence," said Kristen Clarke, president of the Lawyers' Committee for Civil Rights Under Law, "that he’s concerned about his legacy."