Federal Courts and Nominations

Supreme sendoff: The nine justices end term with unanimity and uncertainty

The high court enters its summer recess with uncertainty over whether bench vacancy is imminent

The Supreme Court has wrapped up its tumultuous term with a surprising degree of consensus that masked underlying tensions over the extent to which its nine members should flex their political and judicial muscle.

From a beloved justice’s death and a testy confirmation fight for her replacement, to fiery demands by the former president for the court to get involved in election outcome fights – all played out in a pandemic with virtual court hearings – the high court enters its summer recess with uncertainty over whether another bench vacancy is imminent.

Progressive lawmakers and activists have demanded 82-year-old Justice Stephen Breyer step down and give President Biden a chance to ensure his replacement is confirmed by a Democrat-controlled Senate. But such ramrod rhetoric is chancy.

“It would surprise me if Justice Breyer kow-tows to this public drumbeat for his resignation right now,” said Thomas Dupree, a former senior Justice Department official under President George W. Bush. “And if anything, the people so vocally calling for him to step down, might run a risk that it backfires, that it actually solidifies his desire to serve on the court,  sending a message that I can’t be pressured out of this job.”

The court’s oldest member may in fact be enjoying something of a renaissance with newfound power. With Justice Ruth Bader Ginsburg’s passing from cancer in September, the pragmatic and collegial Breyer inherited the unofficial title of senior liberal justice. He wrote the court’s 7-2 opinion in probably the most-watched case of the term, upholding the Affordable Care Act, for the third time.

And he authored the 8-1 free speech decision in favor of a high school student who was punished for posting vulgar language and images on social media while off-campus.

Breyer and his two mostly liberal colleagues Justices Sonia Sotomayor and Elena Kagan were on a surprising number of winning cases, despite a 6-3 conservative majority. All six right-leaning justices in cases big and small, found ways to cross ideological lines, in many cases with one voice.

About 60% of argued cases this term were unanimous or decided by all but one dissent. According to SCOTUSblog website, the average rate over the past decade was well under 50%.

In the past term, a united court:

– Ruled for Catholic Social Services, in a religious liberty dispute with the city of Philadelphia, over the agency’s refusal to screen same-sex couples for a state-contracted foster care program.

– Tossed out the NCAA’s cap on “educated-related” benefits for student-athletes, such as paid internships and computers. It could clear the way for directly paying students in high-profile sports like basketball and football.

– Tightened guidelines for the ability of police to conduct a warrantless search of a home, absent clear exigent circumstances.

– Issued separate decisions on military prosecutions for rape; and the ability of Muslim-Americans to sue the government for wrongly being placed on a no-fly list.

All of these opinions were decided in relative narrow fashion, by focusing on the particular facts at hand, without offering sweeping rules to guide future cases. That ensures similar disputes would percolate back up to the high court– but for now, the larger controversy is avoided.

Forceful Show of Unity

Much of that show of unity can be laid at the feet of Chief Justice John Roberts. Those close to Roberts tell Fox News he has been especially sensitive to political attacks on the court as an institution, and its role as a fair arbiter of the rule of law.

The “chief,” as he is informally known around the court, has publicly stated his long-term efforts to forge consensus with his colleagues whenever possible, show respect for precedent, and preserve the court’s reputation.

“When you live in a polarized political environment, people tend to see everything in those terms,” Roberts said in 2019. “That’s not how we at the court function and the results in our cases do not suggest otherwise.”

Many court watchers applaud the court’s efforts, however limited.

“This [health care] case was simply another attempt to get the Supreme Court to do what Republican politicians want but can’t seem to do through the political system,” said Elizabeth Wydra, president of the progressive Constitutional Accountability Center. “That’s what Roberts said: that’s not our job. If politicians don’t like it, it’s their job to deal with it through the political system, and don’t bring these kinds of legally bogus cases, trying to get the justices to do their dirty work.”

And this internal desire for consensus may be driven by outside forces, including former president Donald Trump’s ongoing criticism of the court and President Biden’s creation of a presidential commission to consider potential changes to the court’s size and life tenure. That White House-run commission met publicly for a second time on Wednesday, with a report– but no recommendations– due by year’s end.

Lingering Laments

The justices managed to avoid entangling themselves in various challenges to voting results and procedures in several swing states that gave Joseph Biden the presidency.

That left Trump still fuming, especially at two of his three nominees, Justices Brett Kavanaugh and Amy Coney Barrett.

“I am very disappointed. I fought very hard for them, but I was very disappointed with a number of their rulings,” Trump said June 22. “Second-guessing does no good, but I was disappointed with a number of rulings that they made.”

Days later, he slammed the courts for his failed election challenges. “Many of our judges were gutless,” he said at an Ohio political rally. “And our Supreme Court, I must say, I am ashamed of our Supreme Court.”

But the three newest justices have clearly moved on, and have wasted little time flexing their power.

SCOTUSblog figures found they were at the top, when it came to being in the majority– Kavanaugh in 97% of merits cases this term, Barrett at 91%, and Justice Neil Gorsuch at 89%. Roberts was at 91%, Justice Clarence Thomas and Breyer at about 80% each, and Sotomayor trailing at 70%. That could now arguably put Kavanaugh as the unofficial “median justice” at the conservative court’s shaky center, alongside Roberts.

That has led some legal scholars to conclude– at least for now– that the court’s 6-3 conservative majority may be a 3-3-3 split, with Roberts, Kavanaugh and Barrett in the malleable middle.

But the controlling opinions often consisted of strange bedfellows, with Kagan and Breyer siding with conservatives.

And in one environment-related case, the 6-3 decision featured the six male justices on one side, and three females on the other– with Barrett writing a dissent, backed by her liberal benchmates.

While many Republicans may be disappointed, Barrett’s discretionary path beyond lockstep “conservative” jurisprudence is not unusual. Public perception of how a justice will rule is often crystallized by the televised Senate confirmation hearings.

For Barrett, quickly nominated and confirmed weeks before the November presidential election, that meant an especially bright media spotlight, with many Democrats offering dire, partisan warnings.

Then-Senator Kamala Harris, D-Calif.:  “This [Judiciary Committee] hearing is a clear attempt to jam through a Supreme Court nominee who will take health care away from millions of people.”

Then-Senate Minority Leader Charles Schumer, D-N.Y.:  “The American people should make no mistake— a vote by any senator for Judge Amy Coney Barrett is a vote to strike down the Affordable Care Act.”

Barrett wound up joining the court’s 7-2 limited ruling upholding the so-called ObamaCare law, joining conservative Justices Roberts, Thomas, and Kavanaugh.

“This is the case Democrats used to completely scare monger” the Barrett confirmation, said Carrie Severino, president of the conservative Judicial Crisis Network. “This was about political theater and they couldn’t resist the opportunity to try and distract from an incredibly accomplished and talented woman.”

Underlying Uncertainties

But ideological tensions did emerge this past term. The court on its last day before recess issued a deeply divided 6-3 ruling upholding a pair of voting restrictions passed by Arizona’s GOP-led legislature.

That prompted a blistering dissent by Kagan: “What is tragic here is that the Court has (yet again) rewritten– in order to weaken– a statute [the landmark Voting Rights Act of 1965] that stands as a monument to America’s greatness, and protects against its basest impulses.”

And Kagan in several instances sparred with Kavanaugh, especially in a criminal sentencing case where Kagan wrote the colorful majority opinion that was joined – in another unusual lineup – by Justices Gorsuch and Thomas. In one passage she tweaked Kavanaugh’s “complicated counting exercise” about the justices’ lineup that produced the winning margin, “apparently to show how unfair it is that the dissent’s view has not prevailed here,” said Kagan.

In another criminal law case earlier in the term, Kagan, now in dissent, accused Kavanaugh of treating “judging as scorekeeping and more, as scorekeeping about how much our decisions, or the aggregate of them, benefit a particular kind of party.”

But it was Justice Samuel Alito who was most consistently critical of colleagues, left and right, on what he suggested was the court’s select effort at consensus.

In dissent after dissent, Alito lamented the refusal of the court to either accept a high-profile case for final review, or rulings he felt did not fully address the issues presented.

In the health care case, Alito wrote in his dissent, “The Court simply ducks the issue.”

On the Philly foster care opinion, which did not establish broad precedent: “The Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state,” Alito wrote. “Those who count on this Court to stand up for the First Amendment have every right to be disappointed— as am I.”

Disappointment may soon turn into donnybrooks in coming months, with the Court’s next term promising to be historic, and heated. Traditional ideological divides could arise anew in line with the constitutional stakes involved.

A double-header of petitions could again put the high court at the center of attention, in time to potentially sway the outcome of the 2022 mid-term elections.

The justices have already accepted review of the first major abortion case in nearly three decades, a challenge to a Mississippi law that would ban the procedure after 15 weeks. The court has previously endorsed a woman’s constitutional right to abortion before fetal viability outside the womb — about 24 weeks.

The Second Amendment will also be examined, a New York law making it extremely hard to get a concealed-carry permit to possess a handgun outside the home. The conservative majority could be poised to again expand gun rights, for the first time in a decade.

The justices could also soon accept review of an affirmative action appeal from Asian-American students over Harvard’s admission policies.

“These are major cases and they’re all going to be decided by the conservative majority, in ways that will alter the law in significant ways,” said Paul Smith, a Georgetown University Law Center professor. “The very conservative majority on the court is I think headed in the direction of an absolutely blockbuster term next year.”

More from Federal Courts and Nominations

Federal Courts and Nominations
January 17, 2024

The Leadership Conference on Civil and Human Rights Sign-On Letter Prioritizing Diverse Judges

Dear Senator, On behalf of The Leadership Conference on Civil and Human Rights and the...
Federal Courts and Nominations
July 31, 2023

Liberal justices earn praise for ‘independence’ on Supreme Court, but Thomas truly stands alone, expert says

Fox News
Some democrats compare Justice Clarence Thomas to ‘Uncle Tom’ and house slave in ‘Django Unchained’
By: Elizabeth B. Wydra, By Brianna Herlihy
Federal Courts and Nominations
July 7, 2023

In Her First Term, Justice Ketanji Brown Jackson ‘Came to Play’

The New York Times
From her first week on the Supreme Court bench in October to the final day...
By: Elizabeth B. Wydra, by Adam Liptak
Federal Courts and Nominations
July 8, 2023

The Supreme Court’s continuing march to the right

Major legal rulings that dismantled the use of race in college admissions, undermined protections for...
By: Elizabeth B. Wydra, by Tierney Sneed
Federal Courts and Nominations
June 25, 2023

Federal judge defends Clarence Thomas in new book, rejects ‘pot shots’ at Supreme Court

A federal appeals court judge previously on short lists for the Supreme Court is taking the rare...
By: Elizabeth B. Wydra
Federal Courts and Nominations
May 1, 2023

Supreme Court, done with arguments, turns to decisions

Roll Call
The justices have released opinions at a slow rate this term, and many of the...
By: Brianne J. Gorod, By Michael Macagnone