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Rightward, ho! Assessing the first months of the new nine-member Supreme Court

Thursday, June 29, 2017

The battle to watch pits one kind of conservative against another

When the justices took their chairs last October, Hillary Clinton was a shoo-in for the presidency and Antonin Scalia’s seat seemed destined for a jurist who would anchor a liberal Supreme Court majority for the first time in almost five decades. Nine months later, as the justices wrapped up a largely uncontentious term, Neil Gorsuch, Donald Trump’s pick for Mr Scalia’s seat, seems poised to cement the court’s conservative tilt for the foreseeable future. “Conservatives have to be clinking their champagne glasses,” says Elizabeth Wydra, president of the Constitutional Accountability Centre.

Justice Gorsuch joined the court in mid-April, taking part in only 13 of the 60-odd cases handed down by the end of June. That is enough to confirm that he mimics his predecessor’s jurisprudence. Indeed, he seems to be even more conservative: his votes are in lockstep with those of the right-most justice, Clarence Thomas. In the eyes of Ian Samuel of Harvard Law School, who clerked for Scalia, the new justice “seems to combine Justice Thomas’s views with Scalia’s writing skill and assertiveness”. Justice Gorsuch has already penned or joined a sheaf of conservative opinions and statements on religion, gun rights, gay couples and Mr Trump’s travel ban that needle not only the court’s liberal justices, but also Anthony Kennedy, his old boss, and John Roberts, the chief.

On June 26th the court ruled that Mr Trump’s executive order suspending travel from several Muslim countries applied only to foreigners who lacked a “bona fide” link to people or organisations in America. Justice Gorsuch, joined by Justices Alito and Thomas, dissented in part. They argued that the order should have been revived immediately pending the court’s full consideration of the case in October. They seemed unwilling to affirm a string of lower-court rulings that judged the ban to be motivated by religious hostility rather than genuine national-security concerns.

The court’s compromise on that issue bears the print of Chief Justice Roberts, who has tried to keep his court above the political fray. In April the chief said there was a “real danger” that the public would assume that the courts were embroiled in the same “partisan hostility” as Congress and the White House. By making its endorsement of the president’s travel policy partial and temporary, and in light of the time-bound nature of the order (its entry and refugee bans expire in 90 and 120 days respectively) the anodyne, unsigned 13-page order may be all the Supreme Court ever has to say about it.

Jeffrey Rosen, president of the National Constitution Centre, a non-partisan museum in Philadelphia, cites this shrewd compromise as an exemplar for a “term when the court was holding its fire”. It is “exciting”, Mr Rosen says, to see Chief Justice Roberts’s “vision of narrow, unanimous opinions realised so dramatically”. It was indeed a year of comity: Adam Feldman, a Supreme Court statistician, notes that the 2016-17 term was one of only two in the past 50 years in which there were more unanimous rulings than divided ones.

In 2013 Chief Justice Roberts defanged the Voting Rights Act on the ground that the status of racial minorities had dramatically improved. Yet in February he wrote the opinion in Buck v Davis, a 6-2 ruling condemning the lawyer of a black man who was convicted of murder for putting up a witness who testified that black men are particularly prone to violence. Duane Buck “may have been sentenced to death in part because of his race”, the opinion read. This is “a disturbing departure from a basic premise of our criminal-justice system”. And for just the third time in his 12-year tenure, the chief joined his liberal colleagues to form a five-justice majority in Bank of America v City of Miami, a ruling allowing cities to sue banks whose predatory loans to black home-owners helped spur defaults and urban blight.

Several contentious issues await the justices when they convene again in October. In addition to the travel ban and two other immigration disputes to be re-argued, they will hear the case of a Colorado baker with religious objections to same-sex marriage who refuses to create a wedding cake for two men. They will ask whether law-enforcement agents may look up people’s mobile-phone records without a warrant. And in a case that could reshape American electoral politics, they will hear a constitutional challenge to partisan gerrymandering. With retirement rumours dispelled for now, swing-Justice Kennedy seems likely to be around for another year. The battle to watch lies to his right: Justice Gorsuch’s bold conservatism challenging the chief’s more cautious kind.