Last October, when the Supreme Court began its term, liberals had good reason to be despondent.
The Court’s most recent term, which ended Thursday, was the first full term since Justice Brett Kavanaugh, a staunch conservative, replaced his more moderate predecessor Justice Anthony Kennedy. It was also the first term where Kavanaugh helped select every case that would be heard by the justices.
By all outward signs, the Court’s conservative majority approached its docket like they were children turned loose in a toy store. The Court planned to hear a case that presented an existential threat to the right to an abortion. It seemed likely to shut down the Deferred Action for Childhood Arrivals (DACA) program — which benefits hundreds of thousands of immigrants — potentially doing so permanently so that no future president could revive it. And the Court appeared ready to expand the Second Amendment, a longtime project of Kavanaugh’s.
In the end, the Court took a far more measured approach to each of these cases. The right to terminate a pregnancy survives, although Chief Justice John Roberts signaled pretty clearly that it is unlikely to survive much longer. DACA also survives, although only due to a paperwork error that the Trump administration may correct. The guns case ended, not with a bang but with a whimper.
This is still an extremely conservative Supreme Court. The just-completed term was a disaster for voting rights. It imposed significant new limits on Congress’ ability to investigate President Trump. The religious right walked away with several big victories. The Court opened up a new front in the war on Obamacare.
But the Court also showed that there is at least some daylight between its interpretations of the law, and the policy preferences of the Republican Party.
A partial explanation for the liberal victories this term is that conservative advocates got ahead of their skis. As Brendan Nyhan, a professor of government at Dartmouth College, wrote in 2015 — the last time the Court had a surprisingly liberal term — “the court’s recent decisions may reflect a change in the cases being considered by the court rather than a shift in the preferences of the justices.”
When the Court moves rightward, conservative advocates are more likely to bring dubious cases — and conservative lawmakers are more likely to enact laws of dubious constitutionality — out of a belief that an ideologically sympathetic Court is likely to rule in their favor. Liberal lawyers, meanwhile, will be more likely to avoid federal court unless they are sure their arguments are airtight. As a result, the Supreme Court will tend to hear weaker claims from conservatives and stronger claims from liberals.
Additionally, at least two members of the Court — Chief Justice Roberts and Justice Neil Gorsuch — do not always share the same ideological commitments as their fellow Republican justices. Roberts is less active with movement conservatism than his four most conservative colleagues. And Gorsuch’s commitment to a particular method of deciding cases sometimes overrides his conservative preferences.
Because Republicans control only five of the nine seats on the Supreme Court, conservative advocates often need to win the vote of every single conservative justice in order to prevail. So if either Roberts or Gorsuch is unpersuaded by a conservative argument, that’s frequently enough to hand a loss to that argument’s proponents.
Conservatives brought several exceedingly weak cases to the Supreme Court this term
Here’s a good rule of thumb for new law school graduates: It’s a bad idea to make a case that is literally identical to one that you recently lost in the Supreme Court. Yet that’s more or less what anti-abortion advocates did in June Medical Services v. Russo.
In Whole Woman’s Health v. Hellerstedt (2016), the Supreme Court struck down a Texas law requiring abortion providers to obtain admitting privileges at a nearby hospital — a credential that is very difficult for abortion doctors to obtain and that does little or nothing to improve health outcomes. June Medical asked the Supreme Court to uphold a Louisiana law requiring abortion providers to obtain admitting privileges at a nearby hospital. As Justice Stephen Breyer noted in his June Medical opinion, the two laws were “almost word-for-word identical.”
Conservatives undoubtedly hoped that, with Kennedy, who joined the majority in Whole Woman’s Health, no longer on the Court, they could get a different outcome in an interchangeable case. But Roberts was unwilling to endorse such an attempt to treat his Court as a purely political body. “The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law,” Roberts concluded in an opinion that reluctantly agreed to strike down the Louisiana law.
Much of Roberts’s opinion laid out his objections to the Court’s existing abortion rights cases, so Roberts remains likely to uphold significant restrictions on abortion in the future. He’s just not willing to uphold the exact same law that the Court struck down a few years earlier.
Similar things can be said about Department of Homeland Security v. Regents of the University of California, where Roberts joined his four liberal colleagues in holding that the Trump administration didn’t complete the proper paperwork when it decided to terminate the DACA program, which allows nearly 700,000 undocumented immigrants to live and work in the United States. The nation’s highest court typically does not exist to excuse high-level government officials who do not want to do their homework.
If the Trump administration wanted to end DACA, it should have just fixed its paperwork error, rather than spending years litigating this case through the federal court system.
And then there’s Trump v. Vance, where the Supreme Court held that the president of the United States does not enjoy total immunity from state criminal investigations. Many of Trump’s legal arguments in this case were so absurd that they bordered on self-parody.
Here is Trump’s lawyer, William Consovoy, telling Judge Denny Chin that if Trump were to shoot someone on fifth avenue, he could not be criminally investigated while in office.
Very normal argument. pic.twitter.com/xlDBwmCUnR
— Erick Fernandez (@ErickFernandez) October 23, 2019
None of this means that conservative lawyers have nothing to gain from bringing audacious arguments to a conservative Court. Twenty years ago, many justices believed that it is unconstitutional for the government to fund religious schools. But in Espinoza v. Montana Department of Revenue, the Supreme Court held this term that states are required to fund such schools if they provide similar funding to secular private schools.
Similarly, in Trump v. Mazars, the president sought new protections against congressional immunity that were entirely at odds with existing precedents. He won anyway, although the Court didn’t go quite as far as Trump’s lawyers asked it to go.
Nor did conservatives really lose anything meaningful in June Medical, Regents, or Vance. Roberts is still likely to uphold nearly any anti-abortion law that’s brought before him. The paperwork error in Regents can be cured. And Vance largely just maintained a status quo that says the president isn’t completely above the law.
But if conservatives ask for too much, too fast from this Supreme Court, they will eventually find the justices’ limits.
Roberts is very conservative, but he’s divorced himself somewhat from the conservative movement
In the fall of 2007, Chief Justice Roberts had just celebrated the second anniversary of his appointment as the nation’s highest-ranking judge when he delivered the “7th Annual Barbara K. Olson Memorial Lecture” to the conservative Federalist Society. According to the society’s website, that was the last time the chief justice spoke to this organization, which forms the locus of legal conservatism within the United States.
In this sense, Roberts is quite unlike his four Republican colleagues. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh are all frequent speakers at the Federalist Society’s events — both Gorsuch and Kavanaugh took a victory lap at the society’s annual black-tie dinner not long after their confirmation to the Supreme Court. Indeed, the Court’s rightmost justices frequently attend this dinner even when they are not on the speaking program and are just there to enjoy a meal with friends.
It’s hard to minimize the importance of the Federalist Society, which plays an outsize role in selecting President Trump’s judicial nominees, and in maintaining ideological discipline among conservative legal elites.
Research shows that sitting justices are “very prestige hungry” and they “care a lot about their reputations,” according to Maya Sen, a professor at Harvard’s Kennedy School of Government who studies the Supreme Court. The justices, Sen told me, “want to be viewed well by their peers” within the elite echelons of the legal profession, a privileged cohort that includes many “liberal academics.”
The Federalist Society, moreover, was born out of many conservative legal elites’ perception that their ideas were not taken seriously within the legal profession and especially within academia. As then-Solicitor General Ted Olson told the Federalist Society in 2002, “the best measure of our success is the sound of gnashing teeth and lamentations by those who feel threatened” — he then proposed a toast to the society “for sowing such delightful despair among the legal, political and academic establishment.”
At the same event, Federalist Society president Eugene B. Meyer complained that conservatives on law school campuses “have trouble finding faculty advisers” and that “certain ideas are not being heard in law schools.”
The Federalist Society, according to Sen, creates a “safe space” for conservative lawyers — up to and including sitting Supreme Court justices — where they can feel professionally validated without having to seek such validation from the kind of liberal thinkers who often fill the pages of the Harvard Law Review.
The society succeeds not just by doling out plum jobs to loyal conservatives, but also by satiating its members’ very human need to feel loved and respected by their professional colleagues — by surrounding those members with colleagues who love and respect people who advance conservative causes.
Amanda Hollis-Brusky, a politics professor at Pomona College and the author of Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution, agreed that Roberts’s apparent distance from the Federalist Society distinguishes him from his fellow Republican justices, but she added that she’s not sure if Roberts’s cooler relationship with the powerful conservative organization is a “cause or an effect” of the fact that he sometimes votes to the left of justices like Alito or Kavanaugh.
Hollis-Brusky pointed to Roberts’s vote to uphold most of the Affordable Care Act in NFIB v. Sebelius (2012) as the “first time that Roberts deviated from what was clearly the Federalist Society’s preferred outcome.” Roberts’s decision to keep Obamacare alive, she says, may have created a rift between the chief justice and the society.
Once a rift forms, it can be self-reinforcing. Roberts’s vote at NFIB may have alienated him from conservative legal elites, but that makes it less likely that he’ll seek validation from them in the future, which in turn makes it less likely that he’ll vote with his fellow Republicans.
Hollis-Brusky also pointed to another factor that may drive Roberts’s occasional flirtations with the left. Justice Kennedy, she noted, voted more conservatively when Justice Sandra Day O’Connor was the Court’s “swing” justice — the justice in the Court’s ideological center — than he did when Kennedy took up the “mantle” of the swing vote. It’s possible that Roberts feels the same pressure now that he’s at the Court’s center. And this pressure may be accentuated because of his role as chief justice.
It is, after all, the “Roberts Court,” not the “Alito Court” or the “Kavanaugh Court,” that historians will write about if this age is remembered as an era of unbridled judicial partisanship.
Yet, whatever the reason for Roberts’s relative moderation, there are some outward signs that Roberts’s own Republican colleagues view him as an unsteady ally.
When the term began, New York State Rifle & Pistol Association v. City of New York appeared likely to be a landmark Second Amendment case that would expand the scope of that amendment well beyond its current bounds, but the case fizzled due to a jurisdictional problem and wound up having little to say about gun rights.
Justices Thomas, Alito, Gorsuch, and Kavanaugh have all, at various times, called for the Court to take a more expansive approach to the Second Amendment. And, when the New York State Rifle case reached its anticlimactic conclusion, Kavanaugh even called upon his Court to take up “one of the several Second Amendment cases with petitions for certiorari now pending before the Court.” The Court decided to turn away all these cases.
It only takes four votes for the Court to hear a case, which means that Thomas, Alito, Gorsuch, and Kavanaugh could have joined together to hear any case they wanted. It’s likely they decided not to hear another guns case because they were unsure if Roberts was on their side.
In several other cases, Justice Alito did not hide his rage at decisions where Roberts joined the liberals. He claimed that the June Medical decision “twists the law.” And, in an unusually angry dissent, Alito described a landmark LGBTQ rights decision, which Roberts joined, as “deceptive” and “preposterous.”
None of which means that Roberts isn’t an extremely conservative justice. On voting rights, in particular, he is as doctrinaire a conservative as they come. He joined several decisions this term that will make it difficult — and potentially dangerous — for many voters to cast a ballot during the Covid-19 pandemic.
But Roberts, according to Hollis-Brusky, also appears concerned that his Court should not appear to be the “handmaiden of the Trump administration.”
“It’s not that he’s become a raging liberal, by any means,” said Hollis-Brusky, but at least he can claim that “he’s beholden to no one.”
Gorsuch has competing ideological commitments
Justice Neil Gorsuch, meanwhile, voted with the liberal justices in two major cases: Bostock v. Clayton County, which held that the federal ban on “sex” discrimination in employment encompasses anti-LGBTQ discrimination; and McGirt v. Oklahoma which establishes that a huge swath of land encompassing half the state of Oklahoma is what federal law anachronistically refers to “Indian country” — Native American reservations where tribal governments retain considerable sovereign authority.
Gorsuch is much more conservative than Roberts. Indeed, on some important issues, he is probably the most conservative justice to sit on the Supreme Court since the Great Depression. But Gorsuch is also one of the Court’s proudest evangelists for “textualism,” the belief that, in his words, a law should be read according to its “ordinary meaning at the time of its enactment.” And his commitment to this method of interpreting federal laws sometimes overcomes his commitment to conservatism.
From a textualist perspective, Bostock was an easy case. As Shannon Minter, legal director of the National Center for Lesbian Rights, told me, “if it were possible (which of course it’s not) to disregard the fraught social and political context of the case, Bostock would be an entirely unremarkable decision, doctrinally speaking.”
The case involves Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of [an employee’s] race, color, religion, sex, or national origin.” As Gorsuch wrote in Bostock, a ban on “sex” discrimination necessarily encompasses anti-LGBTQ discrimination simply as a matter of textual interpretation:
Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.
Similarly, if an employer “fires a transgender person who was identified as a male at birth but who now identifies as a female” but also “retains an otherwise identical employee who was identified as female at birth,” that employer is engaged in sex discrimination. “Again,” Gorsuch wrote, “the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”
Yet if you attended the oral argument in R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, a companion case to Bostock that was argued the same day, you could watch Gorsuch’s struggle between his textualist methodology and his conservative political views play out in real time. “Assume for the moment I’m … with you on the textual evidence,” Gorsuch told the American Civil Liberties Union lawyer arguing in favor of transgender rights. Should courts “take into consideration the massive social upheaval that would be entailed” in a judicial decision prohibiting anti-LGBTQ employment discrimination?
Ultimately, however, Gorsuch’s commitment to textualism overcame his apparent belief that LGBTQ equality could trigger “massive social upheaval.”
A similar dynamic played out in McGirt, where the state of Oklahoma claimed that if half of its lands were held to be tribal reservations, such a decision “would decimate state and local budgets” because “the State generally lacks the authority to tax Indians in Indian country.”
But Gorsuch wrote that such consequences are irrelevant. “Dire warnings are just that,” according to Gorsuch’s majority opinion in McGirt, “and not a license for us to disregard the law.”
The fact that Gorsuch is so committed to a particular methodology that he’s sometimes willing to break with his fellow Republicans is significant, but it would be an enormous mistake for liberals to think of Gorsuch as an ally, or even as a swing vote.
At the time of his nomination to the Supreme Court, Sen told me, empirical studies placed Gorsuch at the 85th percentile of conservatism among his colleagues on the federal bench. And this rough empirical measure misses much of the nuance of his opinions.
When Gorsuch swings right, he frequently swings hard to the right. For example, he is the strongest proponent of the “right to contract” — often a euphemism for employers’ right to exploit their employees — to sit on the Supreme Court since the Franklin Roosevelt administration. In the past, this discredited “right” was used to strike down minimum wage laws and laws protecting workers’ right to unionize, among many other things, on the theory that the right to contract includes the “right” to agree to be paid insignificant wages, or the “right” to sign away your ability to join a union.
So long as the Court’s current panel of nine justices sits, in other words, conservatives have a lot to gain — and liberals have a lot to fear — from the Supreme Court. The lesson of this past term is not that the Court is liberal. It’s that conservatives cannot expect to win every single case they bring, no matter how weak their arguments.
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