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Tuesday, August 3, 2021

US Supreme Court tilts to the right — but how far will it go?

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America’s highest court has undeniably shifted to the right in its first term following the death of liberal icon Ruth Bader Ginsburg, experts say, with a core bloc of conservative justices wielding their influence to shift decisions.

But the Supreme Court’s nine justices have handed down nearly 70 decisions this term that, taken as a whole, paint a more nuanced picture than some conservatives may have hoped when Amy Coney Barrett was sworn in last year as Ginsburg’s replacement — for instance, rejecting a challenge to Barack Obama’s signature healthcare law that Republicans have long hoped to overturn.

Other cases, however, have thrown the 6-3 conservative majority’s power into sharp relief, such as a ruling upholding two Arizona voting laws that opponents said discriminated against racial minorities, which was decided on the term’s last day and split neatly along ideological lines.

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The court’s appetite for compromise will be put to the test when it returns in the autumn to an agenda that already includes contentious issues such as abortion and gun rights.

“Undoubtedly, having Amy Coney Barrett, who is pretty conservative, replace Ruth Bader Ginsburg, who was very liberal, that clearly does make a difference,” said Ilya Somin, a law professor at George Mason University and an adjunct scholar at the libertarian Cato Institute.

“On the other hand . . . it is wrong to say that this is a monolithically conservative court which is going to radically revamp huge areas of constitutional law,” he added.

Legal experts point to a group of four Republican-appointed justices — chief justice John Roberts and Donald Trump appointees Neil Gorsuch, Brett Kavanaugh and Barrett — as having the ability to decide cases.

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Diagonal correlation matrix showing the percent of the time Supreme Court justices agreed with each other in decisions made during the October 2020 term. Chief Justice John Roberts voted with Justices Stephen Breyer and Elena Kagan about as often as he voted with Justice Clarence Thomas

“Any two of them can join with the three Democrats, and have joined with the three Democrats,” said Lee Epstein, a law professor at Washington University in St Louis. “It is not . . . a court where the Democrats are going to lose every single case.”

One widely-cited ruling is the court’s 7-2 opinion dismissing the latest Republican challenge to the Affordable Care Act. Stephen Breyer wrote the majority opinion, joined by the two other liberal justices — Sonia Sotomayor and Elena Kagan — and four conservative colleagues. The seven justices agreed the plaintiffs had no grounds to sue given they had not suffered any harm under Obama’s flagship healthcare reforms. Neil Gorsuch and Samuel Alito dissented.

Another is the court’s unanimous decision siding with student athletes who brought an antitrust challenge against the National Collegiate Athletic Association. The nine justices agreed that restrictions set by the NCAA on scholarships and other benefits were unfair.

“The mix of justices these days is fascinating,” said Jonathan Turley, a professor at the George Washington University Law School. “Most of the opinions did not show the type of clear demarcation or robotic responses that critics have suggested.”

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Progressives are nevertheless fearful that the court could lurch further to the right next year, when the bench will hear cases on two of the most politically divisive issues in America: abortion and guns.

Decisions on both are expected in the spring or summer of 2022 — just months before the midterm elections, when both chambers of Congress will be up for grabs.

Line chart of % of cases in each term showing Uptick in unanimous or near-unanimous Supreme Court decisions

The abortion case challenges Roe vs Wade, the 1973 decision that enshrined a constitutional right to an abortion. It centres on a Mississippi state law that bans abortions after 15 weeks. The gun case questions how far states can go in regulating gun rights, particularly when weapons are carried outside of one’s home.

Legal experts say they expect the conservative majority to rule in a way that satisfies the “pro-life” or anti-abortion movement, as well as gun owners who bristle at any limitations on their Second Amendment rights.

Progressive activists are already on alert after the court’s ruling on the Arizona voting laws. “When it comes to cases dealing with democracy and the right to vote, the Republican justices act as a bloc,” said Brian Fallon, executive director of left-leaning group Demand Justice. “Democrats need to treat this like the emergency situation it is.”

It is unclear how far the bench will be willing to go in upsetting previous Supreme Court decisions in the term ahead — particularly at a time when Roberts and the associate justices have indicated they want the court to be seen as an august, independent institution outside the realm of partisan politics.

“By any metric, it is the most conservative court in recent memory,” said Debo Adegbile, a partner at the law firm Wilmer Hale. “But the court is an institution. It is an institution that has to think about its legitimacy and credibility in a very fractured political environment and in a very fractured nation.”

Somin of George Mason University said he thought it was “likely” that the conservative majority moved the needle in a “more conservative direction . . . but it matters a lot exactly how much they will move it, and that is far from clear”.

“My guess is they want to allow restrictions on abortion, loosen restrictions on guns, and so on,” said Epstein of Washington University in St Louis. “But how far are they willing to go?”

Additional reporting by Christine Zhang in New York

Author: Lauren Fedor in Washington
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US Supreme Court tilts to the right — but how far will it go?
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