(Bloomberg) — The United States Supreme Court waited until the end of its nine-month term to remind the country just how much muscle its 6-3 conservative majority has.
Bloomberg’s Most Read
In a trio of rulings on Thursday and Friday, judges banned the use of race in college admissions, struck down President Joe Biden’s student loan relief plan and crafted a First Amendment exception to anti-college laws. -discrimination.
The decisions altered the trajectory of a term that had hitherto featured more Conservative setbacks than victories. Operating in the shadow of ethical controversies and questions about its institutional credibility, the court managed to avoid “major upheaval” for much of the term, said David Strauss, professor of constitutional law at the University Law School. ‘University of Chicago.
“Then last week, in the cases where there was probably the strongest disagreement between the judges, the conservative majority reasserted itself in a much more aggressive way,” Strauss said.
Each of the three rulings, released on Thursday and Friday, was far-reaching in its own way. The admissions ruling overturned nearly half a century of precedents that had let universities consider race as an admissions factor in an effort to ensure diversity in student bodies.
The student loan decision undid a plan that would have canceled at least some loans for more than 40 million people. It is the latest in a series of rulings that have struck down Biden administration policies as overriding executive branch authority.
And the First Amendment ruling, which favored a Colorado web designer who wanted to create web pages just for heterosexual marriage, was a blow to LGBTQ rights eight years after the landmark court ruling legalizing same-sex marriage in the United States. national scale.
“As a black lesbian woman, this has been an incredibly difficult week,” said Stasha Rhodes, campaign manager for United for Democracy, a coalition calling on Congress to rein in the Supreme Court. She said the court in the Colorado case “once again ignored the long-standing precedent to impose its own right-wing agenda.”
The judges closed the week by announcing new cases they will hear when they return in October, when fights for gun rights and federal regulatory power will top the agenda.
Supreme Discord
The decisions came amid a whirlwind of ethical controversies – including revelations that Republican megadonors funded luxury vacations for Justices Clarence Thomas and Samuel Alito – and a decline in public trust since the leak. last year of the court’s opinion nullifying the constitutional right to abortion.
In his opinion on the student loan, Chief Justice John Roberts alluded to the discord that has surfaced between the judges.
“It has become a disturbing feature of some recent opinions to criticize decisions with which they disagree as going beyond the proper role of the judiciary,” he wrote.
Roberts was quick to say he was not critical of the tone of Judge Elena Kagan’s dissent in the case.
“We do not confuse this sincere disagreement with disparagement,” Roberts wrote. “It is important that the public is not misled either. Such a misperception would be detrimental to this institution and to our country. »
Roberts, who has tried to defend the court’s institutional status, has found himself embroiled in controversy over alleged ethical transgressions by his colleagues and the lack of a binding code of conduct for judges. Democrats slammed him in April when he refused a request to testify on ethics before a Senate panel.
Election decisions
Important as they are, the three decisions last week were among only five that found the six Tories in the majority and the three Liberals in the dissent.
“To the extent that there was a narrative about a 6-3 Conservative majority that could and would follow a particular playbook across the board, that narrative didn’t hold up,” said Rick Garnett, a professor at the Notre Dame Law School.
In cases involving election law, immigration, Native American law and even abortion, Roberts and Judge Brett Kavanaugh sided with the liberal wing, while the court stuck to its precedents, avoided sweeping legal changes and, in some cases, rejected once fringe legal theories pressed by enthusiastic conservatives.
The setback has been particularly notable in the area of electoral law. Court rules Voting Rights Act requires Alabama to have a heavily black second congressional district — even though 16 months earlier judges blocked a ruling that would have meant a second district for the 2022 election .
The difference was Kavanaugh. In the February 2022 emergency order, he said it was too close to an election for federal courts to order a state to redraw its electoral districts. But after a full briefing and arguments, he joined Roberts and the three Liberals in reaffirming a precedent from 1986 that minority groups have long used to fight discriminatory voting lines.
The court later rejected a sweeping Republican-backed argument that would have transformed federal election law and ousted state judges and other officials from their longtime offices.
“My big takeaway is that the status quo has generally remained and the court has refused to go to extremes in these cases,” said Joshua Douglas, a professor at the University of Kentucky’s Rosenberg College of Law and an expert in electoral right. “It’s not so much that they are more protective of voting rights; instead, the theories presented by the plaintiffs were so radical.
Immigration and abortion
Liberals also feared the court would invalidate at least part of the Indian Child Welfare Act of 1978, which gives preference to Native Americans in adopting and fostering tribal children. The court instead voted 7-2 to uphold the general parameters of the law while saying the challengers — Texas, three non-Native couples and the birth mother of a Native American child — lacked the legal status to argue. some of their arguments.
Standing emerged as an essential concept of the term, giving the court a way to avoid some, but not all, politically charged questions. In an 8-1 decision, the court said Texas and Louisiana lacked standing to challenge Biden’s shift in immigration enforcement priorities, describing the lawsuit as ” federal courts have not traditionally considered”.
The court went the other way by reversing Biden’s student loan relief, finding that at least one of the six Republican-led states had standing. Kagan, in his dissent, argued that the states lacked standing because they were not directly harmed financially. “And in our system, that means refusing to adjudicate cases that aren’t really cases because plaintiffs have suffered no concrete harm,” she wrote.
The court also sided with stability in a challenge to mifepristone, a widely used abortion pill. Over two dissents, the court blocked judge-imposed restrictions that the Biden administration said would have made it impossible to sell the drugs legally across state lines in the short term. This case could come back to court during his next term.
“Unlike last year, when you could plausibly say that most major cases were won by the political right, this year you can’t say that,” said Ilya Somin, a professor at the Faculty of Scalia law from George Mason University.
Regulatory power
Until the last few days, the biggest Conservative victories have come in the area of regulatory power. A Clean Water Act ruling has reduced the power of federal regulators over wetlands, eliminating protections for tens of millions of acres.
And critics of federal regulatory power won a unanimous decision affecting the Securities and Exchange Commission and the Federal Trade Commission. The justices said companies and individuals subject to agency investigations or complaints can go directly to the Federal Court with certain constitutional challenges, including attacks on the use of internal judges to deal with business.
“It was a good term for tougher judicial oversight of the administrative state,” said Curt Levey, chairman of the conservative legal advocacy group Committee for Justice.
Levey said he was happy with the term, although the results weren’t always what grassroots conservatives might have wanted.
“We all need to understand that a conservative court of law is often going to produce results that leave the base unhappy,” he said. “We don’t want a militant conservative court that always gives us the outcome we want.”
–With help from Kelsey Butler.
Bloomberg Businessweek’s Most Read
©2023 Bloomberg LP