Supreme Court sidesteps controversy in term punctuated by politics and pandemic

Big decisions on abortion, gun rights already lined up for next term

Stephen Parlato of Boulder, Colo., holds a sign in front of the Supreme Court warning of far-right extremism on June 28.  (Tom Williams/CQ Roll Call)
Stephen Parlato of Boulder, Colo., holds a sign in front of the Supreme Court warning of far-right extremism on June 28. (Tom Williams/CQ Roll Call)
Posted July 1, 2021 at 1:36pm

The Supreme Court on Thursday ended a term where the justices avoided most major moves that would intensify political scrutiny on the newly expanded 6-3 conservative majority — but also set up potential blockbuster decisions on abortion and gun rights next year as congressional races are underway.

In many ways, the nine-member court searched for its footing over the past nine months as it worked remotely because of the pandemic. It had a new justice — Amy Coney Barrett — and outside expectations from both Republicans and Democrats that the change from a 5-4 to 6-3 conservative advantage would lurch the court rightward.

The justices also faced political pressure: a bill from several Democratic lawmakers to expand the number of justices, a White House commission to study that and other possible structural changes to the court, and President Donald Trump’s long-shot request to have them overturn election results in states key to President Joe Biden’s win.

The Supreme Court, in move after move, did not fan those partisan flames. But on the last day, it issued two sharply divided rulings on cases about voting rights and money in politics.

Up until then, the justices rarely decided cases with the six Republican appointees on one side and the three Democratic appointees on the other, David Cole, the legal director of the American Civil Liberties Union, said Wednesday at a panel discussion.

And they reached “remarkable consensus” on many of the most controversial cases in a way that limited the scope of the decision’s impact, Cole said.

“I think what we’ve seen is the court has confounded all the commentators, it has really avoided partisan division,” Cole said. “This is not a court that has divided, like the rest of the country has, along partisan lines on controversial issues.”

The term started in October with only eight justices because of the death of liberal icon Justice Ruth Bader Ginsberg, amid the political uproar about Senate Republicans racing to fill the vacancy ahead of the Nov. 6 presidential election.

That confirmation fight followed Justice Amy Coney Barrett to the bench, since Democrats argued she would join other conservatives to side with Trump in cases to wipe out the 2010 health care law or challenge the election results.

The Supreme Court did neither.

The justices left alone the health care law, in a 7-2 decision in June written by liberal Justice Stephen G. Breyer and joined by Barrett. It was the widest margin for the law’s three wins in Republican-led challenges at the court since 2012, in a ruling that avoided the most contentious legal issues in the case.

And when Trump and Republican-led states asked the Supreme Court to step into the election in four states key to Biden’s win — a move Trump called “the big one” that “everyone has been waiting for” and “a chance to save our Country from the greatest Election abuse in the history of the United States” — the justices in December succinctly rejected it.

Roberts declined to preside over the second Senate impeachment trial that took place after Trump left office in January. And Biden’s win meant the Supreme Court did not have to decide the House Judiciary Committee’s push to see grand jury materials in former special counsel Robert S. Mueller III’s investigation into interference in the 2016 presidential election.

Several of the major contentious cases of the term were unanimous. One struck down the Federal Trade Commission’s power to seek restitution for unfair or deceptive acts. And the court sided with a Catholic foster care agency over Philadelphia’s non-discrimination requirement in a case about placing children in same-sex households.

In the foster care case, the opinion did not broadly bolster religious rights across the country as many LGBTQ rights activists feared — though three of the more conservative justices indicated they would have done if they had the votes.

“If your starting assumption about the court was that this is a partisan, politicized body that votes their political preferences and that's really what they're all about, this term completely undercuts that thesis,” said Roman Martinez, a Supreme Court litigator at Latham & Watkins law firm who clerked for Chief Justice John G. Roberts Jr.

Still, the court moved in a conservative direction on some key issues over the past nine months. Among them, they sided with religious rights in cases related church closures in COVID-19 lockdown orders, and allowed business owners to exclude union organizers from their property.

Melissa Murray, a law professor at New York University who clerked for Justice Sonia Sotomayor when she was a lower court judge, said unanimity on some cases could be deceptive, and the court still showed an overall conservative drift.

“The theme is: The court is going exactly where people predicted it would go when three Trump appointees were added to it,” Murray said.

And the justices, as usual, saved the most contentious cases for the last day of the term to divide 6-3 on ideological lines. Over the strenuous dissents of the three liberal justices, the court Thursday upheld Arizona voting policies in a ruling that likely will make it harder for voting rights advocates to prove that election laws should be struck down as discriminatory.

And another ruling might lead to toppling laws related to campaign finance disclosure or other money in politics.

Strange bedfellows

Many other cases featured unpredictable lineups on decisions that cut across ideological lines, hinting at a court in flux. For example, conservative Justice Clarence Thomas twice joined with the three liberal justices on the liberal wing to dissent in cases that were decided 5-4, such as one about separation of powers that limited Congress’s ability to give people a right to file lawsuits.

“I don't think anyone had that on their SCOTUS bingo card, right?” said Sarah Harris, a Supreme Court litigator at Williams & Connelly law and former Thomas clerk.

Other cases featured a lot of fractured rulings, where some justices wrote separately or noted their objections to parts of the opinion. Those writings sometimes voiced support for a more aggressive holding, even though what the court could actually agree on was more limited, Harris said.

“I do think it just reflects that the justices are in very different places on lots of different issues and feel comfortable kind of testing out their views to each other and sort of laying down markers,” Harris said.

When they return in three months to start a new term, the conservative majority will be tested on how far and how fast they might rule on two major issues where states and local governments are active and Congress has stalled.

One case gives the justices an opportunity to erode or wipe out the right to abortion first established in the 1973 Roe v. Wade decision, as Republican-led states pass more restrictive reproductive laws. Another would allow them for the first time to expand Second Amendment rights outside the home, which could affect state laws about concealed-carry licenses.

Those decisions would come down before the end of the next term at the end of June 2022.