Another momentous term has ended at the US supreme court in which the rightwing supermajority crafted by Donald Trump has applied its blueprint for the radical overhaul of vast swathes of American public life to critical new areas, including race and LGBTQ+ rights.
In a repeat of the shockwaves of a year ago, when they overturned the right to an abortion, the six rightwing justices – three appointed by Trump – saved their biggest explosions til last. Thursday’s 6 to 3 ruling barring affirmative action at Harvard and the University of North Carolina will affect virtually every selective higher education institution in the US, with potential ramifications far beyond.
On Friday, the last day of the term, the six conservatives wielded their sword over LGBTQ+ rights. In another 6 to 3 ruling, they slashed to the ground anti-discrimination protections to allow a devout Christian web designer to turn away same-sex couples.
The case, 303 Creative v Elenis, was instigated by the Alliance Defending Freedom, a rightwing Christian group that has been classed as an extremist group by the Southern Poverty Law Center. Its legal arguments were based on questionable evidence.
The icing on the conservative cake, also delivered on Friday by a 6 to 3 margin, struck down the Biden administration’s student debt forgiveness plan. Buried with it were the financial hopes of 40 million Americans.
The noise of the last couple of days comes at the end of a judicial term in which, in other respects, the chief justice John Roberts had made notable efforts to keep the court more attuned to rest of the nation. In rulings over voting rights and Native American protections he had steered a middle course, much to the relief of progressives who had been expecting the worst.
But it is the booming decisions on race, LGBTQ+ rights and student debt for which the 2022-23 term will most be remembered. The willingness of the six rightwing justices to stamp their mark on essential spheres of American life, shredding up to half a century of settled law in the process, confirmed the exceptional nature of the current bench.
Joe Biden put it pithily: “This is not a normal court.”
Lia Epperson, a constitutional law professor at American University’s Washington College of Law, said that a clear pattern was now emerging. “We see the court willing to go places it has not gone so quickly in the past, eviscerating precedent and disrupting social norms in ways that are so far reaching.”
The decision to end race-conscious admissions puts an abrupt halt to 40 years of established practice in both public and private colleges. That is an echo of the Dobbs abortion ruling, in which the conservative supermajority tore up Roe v Wade, which had stood as the law of the land for 50 years.
The court’s most seismic decisions not only discarded long-held precedent, they also swam against the tide of public opinion. The five men and one woman who compose the Trump-created supermajority – unelected and appointed for life – are dramatically impacting the lives of millions of Americans in what amounts to minority rule:
The right to an abortion is supported by 61% of Americans;
The court’s block on Biden’s student loan forgiveness plan goes against the views of 62%;
The decision to tear down affirmative action flies in the face of 63% of Americans who want the practice to continue;
Seventy-one per cent think same-sex marriages should be recognized by law and entitled to the same rights as traditional marriages.
“The court system has become so independent of American public opinion and desires – and certainly our understanding of the constitution – that it risks damaging democracy in a significant way,” said Caroline Fredrickson, a law professor at Georgetown University.
So fierce has been the supermajority’s assault on American values and norms that it is certain further to embolden calls for a reboot. Anger towards the court is on the rise, and confidence in it at an historic low.
The recent spate of ethics scandals have only aggravated the situation. All three of the conservative hardliners – Clarence Thomas, Samuel Alito and the Trump-appointed Neil Gorsuch – have fallen foul of ethics disputes.
The trio were exposed as having failed to disclose luxury travel, lavish gifts or financial interactions with billionaires or corporate interests. Uniquely though, they have the ability to turn a blind eye to the accusations – supreme court justices are the only judges in the country who are unbound by any ethics code.
The backlash is already gathering speed. Within hours of the affirmative action ruling, Hank Johnson, a Democratic congressman from Georgia, denounced it as the work of “Maga” justices, after Trump’s Make America Great Again slogan.
Johnson is sponsoring a bill that would expand the court from nine to 13 justices as a means of loosening the hard right’s grip on power. “Judicial activism must be met with passage of my legislation,” he thundered.
Calls to the barricades such as Johnson’s threaten the reputation and stability of the supreme court. The standing of one justice is especially imperiled: Chief Justice Roberts.
The court’s shift sharply to the right has led observers to question whether Roberts has ceded leadership to his most extreme peer, Clarence Thomas. “Roberts has lost control of the supreme court,” warned the New York Times opinion pages. “The Thomas court,” proclaimed the anti-Trump conservative group, the Lincoln Project.
Headlines like these cannot please Roberts, a lawyer who cares about the public-facing aspect of his job. Roberts cut his judicial teeth in the political realm, as counsel in Ronald Reagan’s justice department.
As a result of that exposure to the cut and thrust of political life, perhaps, he is sensitive to public opinion and shows a keenness to hold the people’s trust. Those are sentiments that seem not to perturb his more headstrong colleagues.
“Roberts is more careful in suppressing his viewpoints when he recognizes that they will inflame those who want to reform the court; he plays a long game,” Fredrickson said. “Thomas and Alito don’t have that vision – they want immediate gratification, whereas the chief is satisfied with delayed gratification.”
That distinction was on display in three important rulings issued earlier in June. In each, Roberts surprised observers by breaking up the monolithic 6 to 3 hard-right supermajority and forging new alliances.
In Haaland v Brackeen, Roberts forced Thomas and Alito back into the minority by orchestrating a 7 to 2 ruling that preserved the Indian Child Welfare Act. The decision was hailed by Native American groups as an existential victory upon which the survival of tribes depended.
Two major voting rights decisions, both written by Roberts himself, were also met with stupefaction. Progressive groups had been bracing themselves for further blows to democratic norms from a court that appeared hell-bent on undoing the gains of the civil rights movement.
Yet when they came down, Roberts’s decisions were surprisingly humble, sticking closely to existing law. In Allen v Milligan, he and another Trump appointee Brett Kavanaugh joined the three liberal justices to find against Alabama in its attempt to draw congressional maps that blatantly discriminated against Black voters.
That ensured the continuation of Section 2 of the 1965 Voting Rights Act, Lyndon Johnson’s landmark civil rights legislation that brought millions of African Americans into the democratic process. Part of the puzzle of the Milligan ruling was that it went against Roberts’s own track record: over decades he had expressed an open antagonism towards Section 2 stretching all the way back to the early 1980s.
In the second voting rights case, Moore v Harper, Roberts yet again drew back from the nuclear option, forcing Thomas and Alito into the minority alongside Gorsuch. Had the hardliners prevailed, a crank reading of the constitution known as the “independent state legislature theory” would have given state legislatures virtually untrammeled power over elections free from judicial oversight from state courts.
Far-right Republican lawmakers would have been empowered to do their worst, ranging from extreme partisan gerrymandering all the way to a potentially supercharged assault on democracy in the 2024 presidential race that might have made the assault on the US Capitol on 6 January 2021 look like a tea party.
Roberts assuaged those fears, resoundingly rejecting the theory.
The headline writers duly obliged. “John Roberts has wrested back control of the supreme court,” Slate magazine pronounced on Tuesday.
Two days later came the storm.
The release of three devastating rulings, blasted out over the two final days of the term, will at least for now silence talk about Roberts’s moderating influences. This is the chief justice, after all, who personally wrote two of them – affirmative action, and the block on student loan forgiveness – and who joined the third attacking LGBTQ+ rights.
Analysts point out that it was always a mistake to perceive Roberts as a moderating force or to underestimate the intensity of his conservative ambitions. A quick look back at the landmark rulings of the Roberts court settles that score:
Citizens United (2010), which Roberts joined opening the floodgates for corporate cash to enter politics;
Shelby County (2013), which he wrote punching a giant hole in the Voting Rights Act and prompting a resurgence of voter suppression;
Obergefell v Hodges (2015), which guaranteed the right to gay marriage and which Roberts opposed, issuing a strongly worded dissent;
And this week’s affirmative action and LGBTQ+ rulings (2023), which respectively set back the fight for equal opportunities for minorities in education and opened the door to overt discrimination of protected groups.
That is quite the record.
“I remain very skeptical of chief justice Roberts’s judicial temperament,” Fredrickson said. “He is driven not by disagreement with his conservative peers, but by a different strategy: how to get to the same ends.”
As the judicial term draws to a close, that may be the greatest take away: the Roberts court remains very much alive, just don’t expect it to deliver too many more surprises.
