As rulings have been handed down over the past month, some Supreme Court observers have concluded that the dreaded Trump-weighted hyper-conservative tribunal is proving to be a kinder, gentler center-right body instead.
Do not believe it.
Where some saw hints of moderation in the initial rulings of this term, closer examination shows a basis for future moves to the right. Any doubts about that bent should be removed by two rulings on Thursday in which a bloc of six conservative judges gave clear victories to Republican causes.
More importantly, the court in Brnovich v. Democratic National Committee dramatically reduced section 2 of the Voting Rights Act, which was used against voting restrictions that disproportionately target minority voters. The opinion, from Judge Samuel A. Alito Jr., allows controversial outside-precinct policy to cast ballots and authorizes a ban on “ballot harvesting.”
The court had already gutted the most powerful Section 5 eight years ago in the Shelby County case, and Senate Republicans have united against any voting rights legislation – meaning Brnovich’s decision almost weakens the only tool left to challenge the wave of drastic restrictions. in the red states.
The second major decision confirming the court’s right turn came in Americans for Prosperity Foundation against California Attorney General Rob Bonta. On Thursday, the court delivered another solid victory for the conservative cause by overturning California’s attempt to force organizations to reveal the identities of their major donors.
Those who saw signs of moderation before these decisions misinterpreted two other closely watched cases. California v. Texas and Fulton v. Philadelphia could have, respectively, abolished the Affordable Care Act and largely favored the free exercise of religious rights (conservatives) over civil rights (of same-sex couples). But that did not happen.
Does the burden of work temper the conservative instincts of Trump appointees Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett? Barely.
First, by arriving at the relatively innocuous results of Fulton against Philadelphia and California against Texas, the new Tories have not given up.
When a previous generation of Republican candidates – Sandra Day O’Connor, David Souter, and Anthony Kennedy – showed they were blending into a moderate bloc, they took an unequivocal stance in reaffirming Roe v’s basic stance. Wade. Their reasoning in Planned Parenthood v. Casey in 1992 handed the court over to Roe as a “super precedent.” Moments like this moved the law forward decisively (and conservatism lost). This is not the case with the court rulings last month.
In Fulton v. Philadelphia, the Progressives, joined by Chief Justice John G. Roberts Jr., simply extended current doctrine to conclude that in this particular case, Philadelphia had discriminated against religion by requiring that a Catholic adoption agency work with the homosexual couples. The decision did not require judges to endorse or reject the principle, established in an opinion by Antonin Scalia in 1990, that the state can “burden religion” – that is, restrict its freedom. exercise – if it is done through a neutral and generally enforceable means. law.
In other words, the Fulton decision by no means locks down Tories who want to overturn Scalia’s precedent and establish a primacy among First Amendment rights for religious exercise. The table is still set for such a result, which would be a conservative revolution in the law.
Other decisions in this term – particularly the one that allowed church gatherings to continue during the pandemic despite state public health orders – give any indication the new conservatives are eager for such a change. radical.
Like the Fulton decision which avoided any binding commitment, the Obamacare case was decided narrowly, on the basis of standing. The ACA has survived, but not because a burgeoning reasonable moderate majority has placed the court firmly on the side of the larger legal and social culture, where Obamacare is a fixture. He survived because a slim majority agreed on a side issue.
There have also been several instances of pushing the law to the right into more obscure legal areas that are priorities for the crowd in federalist society. For example, the Transunion case restricted permanent law and made it more difficult for Congress to prosecute violations of federal law; the Cedar Point case expanded what counts as a physical government take; and the Collins case continued on the path to eliminating agency structures that protect officials from dismissal by the President – a protection the majority of the court sees as unduly hampering executive power.
One cannot ignore these decisions to guess the direction of the court, nor interpret alliances in marginal cases as an indicator of true ideological tendencies. For that, look at high-profile rulings like those announced Thursday – and look at the looming Mississippi abortion case that could provide the court with a clear opportunity to overturn Roe v. Wade. The qualified majority of the right on the bench can now simply dismiss dissenting arguments.
The question is not whether the conservative judges will remake American law and society, but when and how.
The Los Angeles Times