The last time the percentage of conservative rulings even rivaled that in the term that ended Thursday was during Chief Justice John G. Roberts Jr.’s first term, which began in 2005.
Since then, the final days of Supreme Court terms have tended to end with a mix of decisions pointing in different ideological directions. That changed this week, with a series of results that left conservatives jubilant and energized about the court’s direction and liberals distraught.
“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 start of the term,” said David Cole, national legal director of American Civil Liberties Union. “This time the doomsayers proved to be absolutely right as the court traded caution for brute force.”
This may just be a consequence of the three justices named by President Donald J. Trump on the court, and especially since his appointment of Justice Amy Coney Barrett, who joined the court after the death in 2020 of Justice Ruth Bader Ginsburg.
In the decades before Justice Barrett’s arrival, the court was closely divided. That meant the member of the court at its ideological center — Justice Anthony M. Kennedy and then-Chief Justice Roberts — wielded enormous power. Both were on the right, but tended to deliver a few big liberal victories each term.
The dynamic on the new court is different and one-sided, with six Republican appointees and three Democrats. The middle judge 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 Kavanaugh moved to the right, voting in a conservative direction 79 percent of the time in split cases in which the court heard arguments and issued signed opinions. In the previous term, that number was 58 percent.
Shifting the court to the right involves all kinds of legal issues, said Melissa Murray, a law professor at New York University.
“While most Americans will focus on the disastrous abortion decision, there have actually been a number of subsequent decisions this term,” she said. “On critical issues like gun rights, religious freedom, federal remedies, government speech and federal regulatory authority, we saw a conservative bloc eager to make the most of its 6-3 supermajority.”
The term was also notable for its division. There was at least one dissent in 71 percent of the court’s signed decisions 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 acutely aware that they were marginalized by what Justice Sonia Sotomayor called, dissenting from a ruling that made it harder to try federal officials for constitutional violations, a “restless and fledgling court.”
“The majority rejected Roe and Casey for one reason and one reason only: because it has always despised them and now has the votes to reject them,” they wrote. “Thus, the majority replaces the rule of law with the rule of judges.”
The court decided 58 cases, a slight increase from the last two terms, which were affected by the pandemic. But even so, the number of signed judgments in controversial cases was the third lowest since 1937.
Nineteen decisions were made by a 6-3 vote, and in 13 of them all three Democratic appointees dissented. These cases included those on abortion, gun rights, climate change, school prayer, government aid to religious schools, the death penalty, campaign finance, and limitations on claims against public officials.
“The Supreme Court has gone much further, much faster, than I expected by this term,” said Tara Lee Grove, a law professor at the University of Texas at Austin.
However, there were some divisions on the right. “The conservative wing of the court is not a monolith,” said Roman Martinez, a Supreme Court specialist at Latham & Watkins, “and there are real and significant differences between how far to push the law in a more original direction and how quickly.”
The most significant example of this was Chief Justice Roberts’ opinion in the abortion case, which would have upheld Mississippi’s restrictive law in question but would not have rejected Roe in so many words. The Chief Justice’s failure to attract a single vote for this approach is telling, Professor Epstein said.
“The court has become the divided, biased, maximalist, activist court that Roberts has railed against for nearly two decades,” she said. “At least for now, he’s lost the battle.”
The members of the court who most often concurred in split decisions were the Chief Justice and Justice Cavanaugh, at 98 percent. The two justices least likely to vote together in such cases are Justices Sotomayor and Clarence Thomas at 14 percent.
Among presidential appointees of various parties, the highest approval rating is between Chief Justice Roberts and Justice Elena Kagan at 48 percent.
But the bigger story of the term was the impotence of liberals on the court, who voted with the majority in split cases just 48 percent of the time. Conservative justices voted with the majority 81 percent of the time. The difference of 33 percentage points between the two blocs is about double the average for previous terms.
The cases and statistics discussed so far refer to what is called a case on the merits, where the court receives full information, hears arguments, and issues reasoned decisions. The court has also decided dozens of cases in what critics call its shadow case, where judges often issue short but consistent orders soon after receiving urgent petitions and without hearing oral arguments.
Abortion, voting and vaccine cases reached the court through emergency pleas this term. So did Mr. Trump’s request to block the release of White House records about the Jan. 6 Capitol attack.
The court rejected Mr Trump’s emergency application in January, with only Justice Thomas dissenting. Two months later, it emerged that the judge’s wife, Virginia Thomas, had sent text messages to Mr. Trump’s chief of staff urging him to take steps to overturn the vote. Legal ethics experts said Judge Thomas should have recused himself.
Analyzing the emergency appeals is difficult, but one trend is clear: In landmark cases before the full court, three of its members — Justices Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — have voted in a conservative direction at a very high percent. “The proposition here is extreme activism rushing to advance conservative interests and causes,” Professor Epstein and Pablo Aabir Das, a recent graduate of the University of Southern California Law School, wrote in an analysis of the data.
The term was a triumph for the theory of constitutional interpretation known as originalism, which sought to identify 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 looked to “historical practices and understandings.” In expanding gun rights, the majority told lower courts to “assess whether contemporary firearms regulations are consistent with the Second Amendment’s text and historical understanding.”
And in ruling that there was 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 disagreed in all three cases, calling originalism narrow and wooden. In a joint opinion on the abortion case, they wrote that “the framers defined rights broadly to allow for future evolution in their scope and meaning.”
Mr Martinez, a High Court specialist at Latham & Watkins, said the development was telling in two ways.
“First,” he said, “it is clear that the majority of the Court is firmly committed to the original understanding of the Constitution rooted in the text and history of the document. Second, this majority will act boldly to apply its originalist philosophy in ways that limit some supposed excesses of 20th-century “living constitutionalism,” even when doing so is controversial and at odds with public opinion polls.
Justice Alito, writing for the majority in the abortion case, said public opinion should not play a role in the court’s decision-making. “We cannot allow our decisions to be swayed by any external influences, such as concern about public reaction to our work,” he wrote.
Public approval of the court is definitely plummeting. In a Gallup poll taken after the abortion draft opinion leaked but before the official decision, for example, public trust in the court fell to 25 percent, the lowest level in the nearly 50 years the poll has been conducted.
Professor Grove said the court’s authority could not withstand a permanent loss of public confidence.
“When you lose enough institutional legitimacy, people just won’t obey your decisions,” she said. “We’re nowhere near that point yet. But we can get to that point.
The court does not decrease. In his next term, which begins in October, he will decide the fate of affirmative action in higher education, how to interpret the Voting Rights Act in the context of redistricting, and whether a web designer has a First Amendment right to refuse to work on same-sex projects weddings.
On Thursday, as they were about to begin their summer recess, the justices agreed to hear another blockbuster case that could radically change the American election, over the power of state legislatures to set voting rules.
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