Since then, the final days of the Supreme Court’s term tend to end with a mix of decisions headed in different ideological directions. That changed this week, with a series of results that left conservatives excited and turned on the direction of the court and liberals disappointed. “Every year since John Roberts became chief justice, the court’s results at the end of the term have been less conservative than many judicial observers feared they would be at the beginning of the term,” said David Cole, the national law director. of American Political Liberty. Join. “This time, the doomsayers got it right, as the court traded caution for raw power.” This can only be the consequence of the three judges named by President Donald J. Trump on the court and particularly the appointment of Justice Amy Coney Barrett, who joined the court after the death of Justice Ruth Bader Ginsburg in 2020. In the decades before Judge Barrett’s arrival, the court was deeply divided. This meant that the member of the court at its ideological center—Justice Anthony M. Kennedy and then Justice Roberts—had enormous power. Both leaned right, but tended to score a few major liberal victories each term. The dynamic on the new court is different and lopsided, with six Republican appointees and three Democrats. The middle justice appears to be Justice Brett M. Kavanaugh, appointed by Mr. Trump to replace the more liberal Justice Kennedy. In the term that just ended, Justice Cavanaugh drifted to the right, voting in a conservative direction 79 percent of the time in divided cases in which the court heard arguments and issued signature opinions. In the previous period, this number was 58 percent. The court’s shift to the right involved all sorts of legal issues, said Melissa Murray, a law professor at New York University. “Although most Americans will focus on the cataclysmic decision on abortion, there have actually been some subsequent decisions under that term,” he said. “On critical issues like gun rights, religious freedom, federal remedies, government speech and federal regulatory authority, we saw a conservative bloc willing to make the most of its 6-3 supermajority.” The term was also notable for its divisive nature. There was at least one dissent in 71 percent of the court’s signed rulings in contested cases, the highest rate in nearly four decades, according to data compiled by Professor Epstein, Andrew D. Martin of Washington University in St. Louis, and Kevin Quinn of the University of Michigan. The court’s three liberals were well aware that they were marginalized by what Justice Sonia Sotomayor, dissenting from a ruling that made it harder to sue federal officials for constitutional violations, called “an anxious and fledgling court.” “The majority rejected Roe and Casey for one reason only: because it has always despised them and now has the votes to reject them,” they wrote. “The majority thus supersedes the judges’ rule of law.” The court decided 58 cases, a slight increase compared to the last two terms, which were affected by the pandemic. However, the number of signed judgments in contested cases was the third lowest since 1937. Nineteen decisions were taken by a vote of 6 to 3, and in 13 of them all three Democratic appointees dissented. These cases included cases on abortion, gun rights, climate change, school prayer, state aid to religious schools, the death penalty, campaign finance, and limitations on lawsuits against government officials. “The Supreme Court has gone much farther, much faster than I expected this term,” said Tara Leigh Grove, a law professor at the University of Texas at Austin. There were, however, some sections on the right. “The conservative wing of the court is not a monolith,” said Roman Martinez, a Supreme Court expert at Latham & Watkins, “and there are real and important differences between how far to push the law in a more original direction and how fast . » The most prominent example of this was Chief Justice Roberts’ opinion in the abortion case, which would have upheld Mississippi’s restrictive statute at issue, but stopped short of overruling Roe in so many words. The chief justice’s failure to attract a single vote in favor of that approach was typical, Professor Epstein said. “The court has turned into the divided, partisan, maximalist, activist court that Roberts pushed back against for nearly two decades,” he said. “At least for now he’s lost the fight.” The members of the court who most often agreed in split decisions were the chief justice and Justice Kavanaugh, at 98 percent. The two justices least likely to vote together in such cases were Justices Sotomayor and Clarence Thomas, at 14 percent. Among presidential nominees of different parties, the highest approval rating was between Chief Justice Roberts and Justice Elena Kagan, at 48 percent. But the term’s biggest story has been the weakness of the court’s liberals, who have voted with the majority in divided cases just 48 percent of the time. Conservative justices voted with a majority 81 percent of the time. The difference of 33 percentage points between the two blocs is about twice the average of previous terms. The cases and statistics discussed thus far concern the so-called docket on the merits, where the court receives full information, hears arguments, and issues reasoned decisions. The court also ruled several cases on what critics call shadow litigation, where judges often issue summary but consequential orders soon after receiving emergency motions and without hearing oral arguments. Abortion, suffrage and vaccine cases reached the court via emergency petitions this term. So did a request by Mr. Trump to block the release of White House records on the Jan. 6 attack on Capitol Hill. The court rejected Mr. Trump’s emergency petition in January, with only Justice Thomas dissenting. Two months later, it emerged that the judge’s wife, Virginia Thomas, had been sending text messages to Mr. Trump’s chief of staff urging him to take steps to overturn the vote. Legal ethics experts said Justice Thomas should have resigned. Analyzing the emergency applications is difficult, but one trend is clear: In major cases referred to the full bench, three of its members—Justices Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — voted conservative direction at a very high rate. “The proposal here is one of extreme activism rushing to advance conservative interests and causes,” wrote Professor Epstein and Pablo Abir Das, a recent graduate of the University of Southern California law school, in an analysis of the data. The term was a triumph for the theory of constitutional interpretation known as originalism, which seeks to determine the original meaning of constitutional provisions using the tools of historians. In ruling that a public high school coach could pray at the 50-yard line after his team’s games, the majority turned to “historical practices and understandings.” In expanding gun rights, the majority told lower courts to “evaluate whether contemporary firearms regulations are consistent with the Second Amendment’s text and historical understanding.” And in ruling that there is no constitutional right to abortion, the majority focused on “how states regulated abortion when the 14th Amendment was adopted” in 1868. The court’s three liberals dissented in all three cases, calling the original limited and wooden. In a public opinion on the abortion case, they wrote that “the framers defined the rights in general terms, to allow for future development in their scope and meaning.” Mr Martinez, the Supreme Court specialist at Latham & Watkins, said the developments were telling in two ways. “First,” he said, “it is clear that the majority of the court is firmly committed to an original understanding of the Constitution rooted in the text and history of the document. Second, this majority will act boldly to apply its original philosophy in ways that limit some of the perceived excesses of 20th-century ‘living constitutionalism,’ even when doing so is controversial and at odds with the polls.” Justice Alito, writing for the majority in the abortion case, said public opinion should play no role in the court’s decision-making. “We cannot allow our decisions to be influenced by extraneous influences, such as concern about the public’s reaction to our work,” he wrote. Public approval of the court is certainly plummeting. In a Gallup poll taken after the draft of the abortion opinion was leaked but before the official decision, for example, public confidence in the court fell to 25 percent, the lowest in nearly 50 years the research. Professor Grove said the court’s authority could not withstand a sustained loss of public confidence. “When you lose enough institutional legitimacy, people are just not going to obey your decisions,” he said. “We’re not close to that point yet. But we could get to that point.” The court does not delay. In his next term, which begins in October, he will decide the fate of affirmative action in higher education, how the Voting Rights Act will be interpreted under restructuring and whether a web designer has a First Amendment right to refuse to work on projects concerning same-sex marriages. On Thursday, as they were about to begin their summer break, the justices agreed to hear another blockbuster, one that could fundamentally reshape American elections, over the power of state legislatures to set voting rules.
