A cautious and conservative Supreme Court


“Every time a new judge comes to the Supreme Court,” Justice Byron White used to say, “it’s a different court.” Campaigners expected this to be especially true when Judge Amy Coney Barrett arrived last year. Left-wing pressure group Demand Justice has denounced the candidate for succession to Judge Ruth Bader Ginsburg as “a militant far-right judge whose confirmation would threaten the lives of millions of Americans” and predicted that her vote would condemn ObamaCare.

The reality is rarely so simplistic. ObamaCare survived California v. Texas with a 7-2 majority, including Judge Barrett. Of the 65 cases the court considered this term, it decided only nine 6-3 votes along conventional ideological lines, and only three of them could be described as involving hot political controversies. One was Cedar Point Nursery v. Hasid, who considered that a California labor regulation requiring agricultural employers to allow organizers to work on their property was “a in itself physical hold ”for which employers were entitled to fair compensation. The others were decided on Thursday at the end of the mandate: Brnovich v. Democratic National Committee on electoral regulations and Americans for Prosperity Foundation v. Bonta on Forced Disclosure of Nonprofit Donors.

Yet it is true that the tribunal has entered a new phase, characterized by modest conservative victories, unpredictable alignments of judges and surprising unanimous judgments. The driving forces are the doctrinal differences between the court’s six Tories, Chief Justice John Roberts’ preference for incremental rather than radical change, and adherence across ideological lines to the principle that judges should follow language. of the law. As Justice Elena Kagan said in 2015, “We are all textualists now.”

On the same day the court ruled in ObamaCare’s favor, it unanimously ruled that Philadelphia had violated the First Amendment by decreeing that a Catholic foster care agency could only operate in the city if it had certified the homosexual couples. The deepest question was the fate of Division of employment c. Smith (1990), a landmark decision asserting that generally applicable laws affecting religious practice do not violate free exercise, no matter how heavy the burden is and the interest of government is low.

In Fulton v. Philadelphia, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch voted in favor of annulment Black-smith. Chief Justice Roberts’ opinion for the other six justices did not go that far, but she rewrote the doctrine by believing that religious conduct should be addressed not worse than equivalent secular conduct. This means that a law is not “generally applicable” under Black-smith if it allows secular exceptions.


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