Even with a conservative 6-3 majority, the US Supreme Court has its limits.
With two rulings on Thursday, the court added a note of moderation to what has been a right turn since the arrival of three people named by Donald Trump. The court rejected the latest Republican attack on the Affordable Care Act and granted religious rights activists only a narrow victory in a clash against the Philadelphia foster care program and same-sex parents.
Together, the rulings mean the court will potentially end Judge Amy Coney Barrett’s first term without a decisive Conservative victory. Although the court still has 15 cases remaining, including a clash over the voting rights law, the theme of the term so far has been more incrementalism than revolution.
Whether this trend continues is another matter. The court headed by Chief Justice John Roberts has already scheduled confrontations over abortion and gun rights for the nine-month term that begins in October. The abortion case could destroy the landmark Roe v. Wade from 1973.
“What we have seen today is the product of several judges – the Chief Justice among them – who strive to build consensus and avoid making big waves,” said Allison Orr Larsen, Professor and Director of the Institute of the Bill of Rights Law at William & Marie Law School. “This may be a short-lived strategy, however, given the hot cases already on the agenda for the next term.”
The Affordable Care Act was the biggest potential prize for Conservatives seeking a legal trophy after Trump’s nomination of Barrett, Brett Kavanaugh and Neil Gorsuch. The states led by Texas have argued that a 2017 tax change, passed by a Republican-controlled Congress, was enough to undo the entire law, also known as Obamacare.
The change eliminated the penalty for failing to comply with the so-called individual mandate to acquire insurance. The sanction was decisive in 2012 when the Supreme Court upheld the law as a legitimate use of the constitutional taxing power of Congress.
Even some conservatives viewed the attack as particularly weak. In seeking to strike down the entire law, Texas was asking the court to do something that Congress itself was unwilling to do, even with Republicans in charge.
“The question was never whether Texas would lose but how,” said Jonathan Adler, law professor at Case Western Reserve University Law School.
The rejection came in the form of a 7-2 decision which said the challengers, which included two people, had no legal right to sue because they had not shown they were injured by the now toothless individual mandate.
Liberal Judge Stephen Breyer drafted the majority opinion, an assignment which, according to normal court practice, came from Roberts. The majority included Kavanaugh and Barrett, appointed by Trump, as well as staunch Conservative Clarence Thomas.
During his confirmation hearing in October, Senate Democrats attempted to present Barrett as a potential vote to invalidate Obamacare.
“Anyone who hoped or feared that this would finally be the time the court overturned Obamacare was either misunderstood or dishonest,” said Ilya Shapiro, vice president of the Cato Libertarian Institute. This should put an end to the “demagoguery that was launched against Amy Coney Barrett during her confirmation hearings that she was appointed to take health care away from the poor.”
The foster care decision showed signs of a compromise. The court unanimously ruled that Philadelphia violated the Constitution when authorities excluded Catholic Social Services from part of the city’s foster care program because the group would not help place children. children with same-sex couples.
Writing for six judges, Roberts pointed to a provision in Philadelphia’s foster care contracts that gives a city discretion to waive its anti-discrimination demands. Roberts said the provision meant those rules were constitutionally suspect because they were not “generally applicable”.
Roberts’ opinion was narrow enough to attract the votes of the three court liberals – Breyer, Sonia Sotomayor and Elena Kagan – as well as Kavanaugh and Barrett.
It also left some of his more conservative colleagues frustrated. Judge Samuel Alito said Philadelphia could get around the ruling by removing the exemption clause from its contracts. “If so, then voila, today’s decision will go away – and the games will be back to where they started,” Alito wrote in a review joined by Gorsuch and Thomas.
Gorsuch was equally ruthless with Roberts’ reasoning. “From start to finish, it’s a dizzying series of maneuvers,” he wrote in a separate notice for the three Tories. It also frustrated some of his more conservative colleagues.
All three said they would overturn a 1990 ruling that the government can enforce generally applicable laws without making exceptions for religious groups. This decision, although written by conservative judge Antonin Scalia, has become a favorite target of religious rights groups.
In a separate opinion, Kavanaugh and Barrett expressed doubts about the 1990 ruling, but said the court did not need to deal with it to resolve the Philadelphia case.
The Liberals also got a consolation prize Thursday when the court gave companies a broader shield against lawsuits brought by victims of atrocities overseas. The court said the allegations in the case – accusing the U.S. unit of Nestlé SA and Cargill Inc. of complicity in the use of child slavery on Côte d’Ivoire’s cocoa plantations – had failed. not enough American connection to move forward.
But five judges also indicated that they read the Alien Tort Statute of 1789 as authorizing lawsuits against American companies, implicitly rejecting a separate argument from Nestlé and Cargill.
The tribunal is expected to issue further opinions on Monday, Wednesday and Friday next week and complete its term the following week. In addition to the Voting Rights Act, the court will rule on school speech, union rights, student-athlete compensation, a securities fraud case against Goldman Sachs, the constitutionality of a commission. patent review and high-stakes lawsuit brought by Fannie Mae and Freddie Mac shareholders.
In a week, “maybe things will look different,” Shapiro said.