Analysis: The Supreme Court’s continuing march to the right

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Major legal rulings that dismantled the use of race in college admissions, undermined protections for LGBTQ people and tossed out President Joe Biden’s student debt relief program marked the end of a Supreme Court term in which the conservative supermajority continued to exert its dominance.

The majority also doubled down on a controversial legal theory that limits the power of federal agencies to take unilateral action.

Meanwhile, the justices rejected a far-fetched argument that would have limited the role of state courts in election disputes and turned away an aggressive attempt to challenge Biden administration immigration policy – both areas in which lawyers on the right might have overreached in their arguments.

But even in the Supreme Court rulings that brought together the liberals and some of the conservatives, there were, at times, subtle nods to the right that foreshadow future attempts to remake the law in conservatives’ favor, said Justin Levitt, a Loyola Law School professor and expert in constitutional and election law.

“This court didn’t bite on crazy,” said Levitt, who previously served in the Biden White House and in the Justice Department under President Barack Obama. “With every rejection of crazy, there are little droplets that the goal posts have moved, just because crazy was suggested.”

Here’s what the conservative majority did this past term:

The justices stayed in their usual corners on cases concerning legal issues that for years have divided along ideological lines. Chief among them was the ruling striking down most uses of race in college admissions – a long-held goal on the right that was finally realized in challenges brought to Harvard’s and the University of North Carolina’s affirmative action programs.

Chief Justice John Roberts, who has long shown skepticism over the use of race in government policy, wrote a 6-3 opinion for the majority. Roberts also authored the majority opinion in the ruling that blocked Biden’s student debt relief program. Though the policy, which was never allowed to go into effect, is less than a year old, the ruling tapped into an escalating war between the liberals and the conservatives over the constraints the court has placed on executive branch policy.

In some ways, the term returned Roberts to his central role, with him writing the conservative rulings on affirmative action and student loan forgiveness, as well the decisions on election law that united liberals with some GOP-appointed justices.

“They’re on issues that have been closest to his central focus throughout his time of the court – sometimes with the conservative majority, and sometimes with a more sort of novel assortment of justices,” said Adam White, a legal scholar at the conservative American Enterprise Institute.

The court’s final week featured another blockbuster 6-3 ruling, in which the conservative justices said that certain businesses involved in creative expression could refuse LGBTQ customers. Justice Neil Gorsuch, who only three years ago wrote a surprising decision enshrining workplace anti-discrimination protections for LGBTQ people, framed the case as a dispute over government-compelled speech.

The liberals who dissented with an opinion written by Justice Sonia Sotomayor argued that the majority was granting “a business open to the public a constitutional right to refuse to serve members of a protected class.”

“I think the justices, in a sense – they were ships passing in the night,” said Richard Garnett, a law professor at the University of Notre Dame who signed a friend-of-the-court brief in support of the aspiring wedding web designer who prevailed in the case. “They disagreed about what the case was about.”

Legal experts told CNN that the majority’s language – and the vague way it defined the type of scenarios under which businesses could decline to serve LGBTQ customers – will likely spur another wave of litigation that will push the envelope on who can be turned away and why.

“I think the big problem here, and it has been and remains a big problem, is that this type of case doesn’t settle the issue,” said Jennifer Pizer, the chief legal officer for the LGBTQ rights group Lambda Legal. “It invites a lot more litigation to ascertain where the limits might be.”

In two cases this past term, the court rebuffed requests from conservative lawyers that the justices transform the way courts interpret election law.

The case with the gravest potential consequences was a North Carolina redistricting dispute in which the court had to consider whether to embrace sweeping versions of the so-called independent state legislature doctrine. The court, in an opinion written by Roberts, rejected the maximalist version of the theory, which says that state courts should have little or no role in interpreting whether the rules for federal elections comply with state law or a state constitution.

But Roberts’ opinion – signed on to by conservative Justices Brett Kavanaugh and Amy Coney Barrett and the three liberals – provoked debate among election law experts whether the door had really been shut on the independent state legislature theory, or if it set the stage for more legal chaos over election rules.

“Just because they didn’t drop a nuclear bomb doesn’t mean you should ignore the conventional troops moving to position,” Levitt said.

The chief justice also wrote a surprising majority opinion – bringing together Kavanaugh and the liberals – that declined to dismantle a pivotal section of the Voting Rights Act, which for decades had been the target of attack by the Roberts court.

In that case, concerning Alabama’s congressional map, the justices upheld the longstanding legal test courts have used to apply the VRA’s prohibitions on racial discrimination in redistricting. A concurrence by Kavanaugh, however, floated certain arguments against the VRA provision, not presented in the Alabama case, that he might find more persuasive.

The issue of standing – i.e., the legal test for whether a litigant has suffered the types of harm that make it appropriate for a court to intervene – played a key role in some of the term’s most important cases. While the majority was willing to accept the thin arguments put forward by Missouri for why it was being harmed by Biden’s student loan forgiveness program, an 8-1 court said that Texas’ and Louisiana’s standing arguments didn’t hold up in a challenge to a Biden immigration policy.

Though there was some disagreement among the justices over why the standing theory put forward by the GOP-led states failed, the ruling – in a challenge to the deportation priorities set out by the administration – continued a line of cases in which the Roberts court gave the executive branch particular leeway on immigration enforcement.

“On immigration, the court has wanted to preserve some level of flexibility with the executive branch – for better or for worse, whether it’s ultimately upholding the Muslim ban under the Trump administration, or here recognizing that, obviously, there needs to be enforcement priorities put into place,” said Elizabeth Wydra, the president of Constitutional Accountability Center, a progressive legal advocacy organization, which filed a friend-of-the-court brief supporting the administration in the dispute.

The court handed the business community a few wins in cases that undermined environmental and union protections, but the majority stopped short of adopting the most sweeping arguments that had been put before the justices.

The court scaled back the scope of the Clean Water Act, with the majority opinion – made up of the conservative bloc, with the exception of Kavanaugh, who joined the three liberals in a concurrence – shrinking what amounts to a “wetland” under the statute.

An atypical lineup of justices sided with a concrete company that sought to get around federal labor law and sue a union in state court for the destruction that striking workers had nearly caused to the company’s cement trucks. With two liberals among the four justices who joined Barrett’s majority opinion, the court opened the door for when unions could be sued for damages related to strikes but used narrow reasoning to do so.

“This is a pattern of a court that reflects economic advantage and power,” said Russ Feingold, the president of the left-leaning legal organization American Constitution Society who previously served as a Democrat in the Senate, including on the Judiciary Committee.

A notable exception to the pro-business trend this past term was a fractured ruling in which the court, in an opinion written by Gorsuch, upheld a Pennsylvania law that allows for companies that do business in the state to be sued there, even if they are headquartered elsewhere or the conduct in question took place in another state. The ruling undermines tactics by corporations to keep lawsuits against them in states with courts that tilt in their favor.

In another case, Gorsuch wrote the majority opinion for a similarly disjointed court that rejected a pork industry challenge to a California anti-animal cruelty law.

“The justices vote in line with our ideological expectations,” said Jonathan Adler, a professor at Case Western Reserve University’s School of Law. “But on the issues that haven’t been really the focus of attention, they don’t conform because the questions don’t immediately fit into our prior notions of where a conservative or a liberal justice fits.”


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